Union of India Vs. Shri Gopal Chandra
Misra & Ors  INSC 32 (15 February 1978)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
FAZALALI, SYED MURTAZA SINGH, JASWANT
CITATION: 1978 AIR 694 1978 SCR (3) 12 1978
SCC (2) 301
CITATOR INFO :
RF 1981 SC 789 (13) R 1987 SC2354 (10) F 1989
Constitution of India Art 217(1) proviso (a)
"resign his office", interpretation--High Court Judge's resignation
letter intimating to have effect from a future date, whether receipt by
President, makes resignation fait accompli- --Revocation of resignation prior
to intimated date of effect, validity of--Doctrine of public policy,
applicability to judicial decisions.
The second respondent (appellant in CA
2655/77) Shri Satish Chandra wrote to the President of India, on May 7, 1977,
intimating his resignation from the office of Judge of the Allahabad High
Court, with effect from August 1, 1977. On July 15,1977, he again wrote to the President, revoking his earlier communication,and commenced deciding
matters in Court from July 16, 1977. On August 1,1977 the first respondent Shri Misra, an advocate of the High Court. filed a petition under Article 226 of the
Constitution, contending that the resignation of Shri Satish Chandra, having
been duly communicated to the President of India, in accordance with Article
217(1) Proviso (a) of the Constitution, was final and irrevocable, and that the
continuance of res- pondent No. 2 as a High Court Judge thereafter, was an
usurpation of public office. The High Court allowed the petition holding that
Shri Satish Chandra was not competent to revoke his resignation letter.
Allowing the appeal by certificate, HELD:
Per R. S. Sarkaria on behalf of (A. C. Gupta,
N. L. Untwalia, Jaswant Singh, JJ and himself).
1. Resigning office necessarily involves
relinquashment of the office which implies cessation or termination of, or
cutting asunder from the office. A complete and effective act of resigning
office is one which severs the link of the resignor with his office and
terminates its tenure. In the context of Art. 217(1) this assumes the character
of a decisive test, because the expression "resign his office" occurs
in a proviso which excepts or qualifies the substantive clause fixing the office
tenure of a judge upto the age of 62 years. [21 E-F]
2. In the absence of a legal, contractual or
constitutional bar, an intimation in writing sent to the appropriate authority
by an incumbent, of his intention or proposal to resign his office/post from a
future specified date, can be withdrawn by him at any time before it becomes
effective i.e., before it effects termination of the tenure of the office/post
or employment. This is general rule equally applies to Government servants and
constitutional functionaries. In the case of a Government servant, normally,
the tender of resignation becomes effective and his service terminated, when it
is accepted by the appropriate authority. In the case of a High Court Judge who
is a constitutional functionary having under Art.
217(1), Proviso (a), a Unilateral right or
privilege to resign, his resignation becomes effective on the date from which
he, of his own volition, chooses to quit office. [27 E_G] Jai Ram v. Union of
India, A.I.R. 1954, SC 584 and Rai Kumar Y. Union of India,  3 S.C.R. 857
M. Kunjukrishnan Nadar v. Hon'ble Speaker,
Kerala Legislative Assembly, A.I.R. 1064 Kerala 194, Y. K. Mathur v. The
Municipal Corporation of Delhi. A.I.R. 1974 Delhi 58, Sankar Datt Shukla v.
President, Municipal Board, Attraiya and Anr., A.I.R. 1956 All. 70 Bahorilal
Paliwal v. Dist. Magistrate, 13 Butandshahr A.I.R. 1956 All. (511) F.B.: I.L.R.
(1956) 2 All. 593-F.B., Bhairon Singh Vishwakarma v. Civil Surgeon Narsimhapur,
1971 Labour Industrial Cases 127 M.P. approved.
Rev. Oswald Joseph Reichal v. The Right Rev.
John Fielder, Lord Bishop of Oxford, 14 A.C. 259, distinguished.
3. A High Court Judge's letter addressed to
the President intimating or notifying the writer's intention to resign his
office as Judge,' on a future date, does no', and cannot forthwith sever the
writer from the office of the Judge, or terminate his tenure. Such a
'prospective' resignation does not, before the indicated future date is
reached, become a complete and operative act of resigning his office by the
Judge within the contemplation of Proviso (a) to Article 217(1).
4. Public policy can be a very unsafe,
questionable and unreliable ground for judicial decision. This doctrine can be
applied only in a case where clear and undeniable harm to the public is made
out. [24C-E] Gherulal v. Mahadeo Das  Supp. 2 S.C.R., 406, applied.
5. In substance, the letter dated May 7,
1977, addressed by appellant 2 to the President, amounted to a proposal or
notice of intention to resign at a future date and, before the arrival of that
date (August 1, 1977). it did not constitute a complete act of resignation
having the jural consequence of severing the link of the appellant with the
office of the Judge, and hence it had been validly withdrawn by him as per his
letter dated July 15, 1977 addressed to the President, there being no
constitutional or legal bar to such withdrawal. [33D-E] Per S. Murtaza Fazal
Ali, J. (Dissenting)
1. Where the effectiveness of a resignation
by a Judge does not depend upon the acceptance by the President, and the
resignation acts ex-proprio vigore on the compliance of the conditions
mentioned in Art. 217(1)(a), the resignor completely ceases to retain any
control over it and becomes functus officio, though the resignation may take
effect from the date mentioned in the letter, or "if no such date is
mentioned, from the date of the letter itself". [54 EG] The Principles
flowing as a logical corollary from the nature and character of the privileges
right or power conferred by the Constitution on a Judge of a High Court or
other constitutional functionaries are :-
1. The concept of the acceptance of
resignation submitted by a High Court Judge is completely absent from Article
217(1)(a), and the effectiveness of the resignation does not depend upon the
acceptance of the resignation by the President.
If. In view of the provisions of Article
217(1)(a) and similar provision,-, in respect to high constitutional
functionaries, the resignation once submitted and communicated to the
appropriate authority, becomes complete and irrevocable and acts ex proprio
III. The resignation may be effective from a
particular date but the resignor completely ceases to retain any control over
it and becomes functus officio once the resignation is submitted and
communicated to the appropriate authority.
IV. The resignation contemplated by Art.
217(1) (a) is purely a unilateral act and
takes effect ipso facto-once intention to resign is communicated to the
President in writing and addressed to him.
V. On a true interpretation of Article
217(1)(a), a resignation having been submitted and communicated to the
President, cannot be recalled even though it may be prospective in nature so is
to come into effect from a particular date.
14 VI. The Constitution contains an express
and clear Provision for the mode in which a resignation can be made. It has
deliberately omitted to, Provide for revocation or withdrawal of a resignation
once submitted and communicated to the President.
In the absence of such a provision, the
doctrine of implied powers cannot be invoked to supply the omission. [56 C-H,
57 A-B] Rev. Oswald Joseph Raichal v. The Right John Fielder, Lord Bishop of
Oxford, 14 A.C. 259, Pinch v. Oake (1896) 1 Ch.D. 409, People of the State of
Illinois Ex. Ral. B.S. Adamowaki v. Otto Kerner, 82 A.L.R. 2nd Series 740,
Glossop V. Glossop (1907) 2 Ch. D. 370; Bidi, Bidi Leaves and Tobacco Merchants
Association, Gondia, & Anr. v. The State of Bombay & Ors., A.I.R. 1962
S.C. 486; applied.
Sukhdeo Narayan and Ors. v. Municipal
Commissioner of Arrah Municipality and Ors., A.I.R. 1956 Patna 367 and 373; and
Smt. Raisa Sultana Begum and Ors. v. Abdul Qadir and Ors., A.I.R. 1966 All. 318
at 321 Approved.
Y. K. Mathur v. The Municipal Corporation of
A.I.R. 1974 Delhi 58, distinguished.
M. Kunjukrishnan Nadar v. Hon'ble Speaker,
Kerala, Legislative Assembly, A.I.R. 1964 Kerala 194, Bahorilal Paliwal v.
District Magistrate, Bulandshahr A.I.R. 1956 All.
511 F.B. = I.L.R. (1956) 2 All. 593 F.B. and
Bhairon Singh Vishwakarma v. Civil Surgeon, Narsimhapur, 1971 Labour Industrial
Cases 127 M.P. disagreed with.
Union of India v. S.H. Sheth and Anr., (1977)
4 SCC 193, Corpus Juris Secundum, Vol. 48 p. 973 and Vol. 67 v. 227;
Jurisprudence by Paton 3rd Ed. by Derham;
Jurisprudence by Salmond, 12th Ed. by Fitzgerald, and American Constitution
edited by Corwin; referred to.
2. It is manifestly plain that there is no
relationship of master and servant, employer and employee between the President
and the Judge of the High Court, because a Judge is not a Government servant so
as to be governed by Article 310 of the Constitution. A Judge of the High Court
appointed under Art. 217 has a special status and is a constitutional
functionary appointed under the provisions of the Constitution by the
President. The mere fact that the President appoints him does not make him an
employer of the Judge, in appointing a Judge, the President exercises certain
constitutional functions as contained-in Article 217(1). It is, therefore,
indisputable that a Judge of the High Court enjoys a special status under the
Constitution, because of the very high position that he holds and the, dignity
and decorum of the office that he has to maintain.
[37 D-H] Union of India v. Sankalchand
Himatlal Sheth & Anr.,  1 S.C.R. 423; followed.
CIVIL APPELLATE JURISDICTION :- Civil Appeals
Nos. 2644 & 2655 of 1977.
(From the Judgment and Order dt. 28th
October, 1977 of the Allahabad High Court in Civil Misc. Writ No. 1172 of
S. V. Gupte, Attorney General and Soli J.
Solicitor General. for the Appellant in C.A.
No. 2644 & R. P. Bhat, R. N. Sachthey & Girish Chandra for the
Appellant in C.A. Mo. 2644 & Respdt. 2 in C.A. 2655/77.
F. S. Nariman, S. P. Gupta, Harish Chandra,
H. K. Puri, M. C. Dhingra and Vivek Sethi for the Appellant in C.A. 2655 &
Respdt. 2 in CA 2644/77.
15 Jagdish Swarup (in CA 2655/77), Yogeshwar
Prasad (in CA 2644/77) and G. N. Verma, A. N. Srivastava, Mool Behari Saxena,
Pramod Swarup, Miss Rani Arora & Miss Meera Bali for Respondent No. 1 in
The following Judgments were delivered
SARKARIA, J.-By a short Order, dated December 8, 1977, we (by majority)
accepted these two appeals and announced that a reasoned judgment shall follow
in due course.
Accordingly, we are now rendering the same.
Whether a High Court Judge, who sends to the
President, a letter in his own hand, intimating to resign his office with
effect from a future date, is competent to withdraw the same before that date
is reached-is the principal question that falls for consideration in these two
appeals, directed against a judgment, dated October 28, 1977, of the High Court
of Judicature at Allahabad, allowing the writ petition of Shri Gopal Chandra Misra,
respondent herein, and issuing a direction under Article 226 of the
Constitution, restraining Shri Satish Chandra (hereinafter referred to as
Appellant 2) from functioning a; a Judge of the Allahabad High Court.
Appellant 2 was appointed to the High Court
of Allahabad a Additional Judge on October 7, 1963, and a permanent Judge or
September 4, 1967. He will be attaining the age of 62 years of September 1,
1986. On May 7 1977, he sent a letter under his hand addressed to the President
of India, through a messenger. This letter may be reproduced as below "TO
The President of India, New Delhi.
Sir, I beg to resign my office as Judge High
Court of Judicature Allahabad.
I will be on leave till 31st of July, 1977.
My resignation shall I effective on 1st of August, 1977.
With my, respects.
" 16 On July 15, 1977, Appellant 2 wrote
to the President of India another letter in these terms "TO The President
of India, New Delhi.
Sir, I beg to revoke and cancel the intention
expressed by me to resign on 1st of August, 1977, in my letter dated 7th May,
1977. That communication may very kindly be treated as null and void.
Thanking you and wishing to remain.
Yours sincerely Sd/- Satish Chandra."
The receipt of this letter of revocation or withdrawal, dated July 15, 1977,
was acknowledged by Shri T. C. A.
Srinivasavardhan, Secretary, Ministry of Law,
Justice & Company Affairs, New Delhi. as per his D.O. No. 2/14/77- Jus.,
dated July 28, 1977. By a separate letter, Appellant 2 cut short his leave and
resumed duty as a Judge of the Allahabad High Court on July 16, 1977, and from
July 18, 1977, he commenced sitting in the Court and deciding cases.
On August 1, 1977, Shri Gopal Chandra Misra,
an Advocate of the High Court, filed a petition under Article 226 of the
Constitution, contending that the resignation, dated May 7, 1977, of Appellant
2, having been duly communicated to the President of India in accordance with
the provisions of Article 217(1), proviso (a) of the Constitution, was final
and irrevocable, and as a result, Appellant 2 had ceased to be a Judge of the
Allahabad High Court with effect from May 7, 1977, or, at any rate, with effect
from August 1, 1977;
therefore, his continuance to function as a
Judge from and after August 1, 1977, was usurpation of the office of a High
Court Judge, which was a public office. On these premises, the writ petitioner
prayed for a writ, order or direction in the nature of quo warranto calling
upon Jr. Satish Chandra to show under what authority he was entitled to unction
and work as a Judge of the High Court. The petition came up for final hearing
before a Bench of five learned Judges of that Court, which by a majority of 3
against 2, allowed the writ petition and issued the direction aforesaid.
Against that judgment, these two appeals, on a certificate granted by the High
Court under Articles 132 and 133(1) of the Constitution have been filed before
this Court. Civil Appeal No. 2644 of 1977 has been preferred by the Union of
India, and Civil Appeal No. 2655 of 1977 by Shri Satish Chandra.
A preliminary objection was raised by Shri
Yogeshwar Prasad, learned counsel for the respondent, Shri Gopal Chandra Misra,
that the Union of India has no locus standi to prefer an appeal against the 17 Order
of the High Court. Simultaneously, with the raising of this objection at the
bar, a petition to that effect was also presented to us, directly. The grounds
of this objection, as canvassed by Shri Yogeshwar Prasad, are :- (a) That the
Union of India was joined merely a pro form a party in the writ petition,
inasmuch as no relief was claimed against it;
(b) That the Union of India is not a party
aggrieved by the Order of the High Court, because no relief has been granted
(c) That the Union of India is not a person
interested; and (d) That the appeal by the Union of India will not further any
public policy; that it has already incurred heavy expenditure in defending the
action of an individual person after he has relinquished his office. Such
expenditure is not permissible and should not be encouraged.
We find no merit in this objection.
The Union of India was impleaded as a
respondent in the case before the High Court by the writ petitioner, himself.
It filed a counter-affidavit contesting the writ petitioner's claim.
Mr. Soli Sorabji, Additional
Solicitor-General, addressed arguments before the High Court on behalf of the
Union of India. No objection to the locus standi of the Union of India to
contest the writ petition was raised, at any stage, before the High Court. It
is, therefore, not correct to say that the Union of India was not a contesting
party in the Court below.
As rightly pointed out by the learned
Attorney General, the Union of India is vitally interested in the case. It is the
President of India who had appointed Appellant 2 as a Judge, and the stand of
the Union of India throughout has been that the withdrawal of the intiniation
to resign by the Judge, is valid and therefore, he continues to hold the office
of a Judge even after August 1, 1977, but the High Court has held otherwise.
The Union of India, therefore, has reason to feel aggrieved by the decision of
the High Court.
In order to give a person locus standi to
appeal on a certificate ranted under any clause of these Articles it is
necessary that he was a "party in the case before the High Court The Union
of India was admittedly such a party having a stake in the dispute. The
substantial question of law involved in the case, is of general importance and
concerns the interpretation of the Constitution.
We are not concerned with the matter of
incurring expenditure by the Union of India; whether it is justified, proper or
not. We are 18 surely of the view that the Union had a substantial interest in
this proceeding. Thus, from every point of view, the Union of India is entitled
to come in appeal to this Court and question the correctness of the High
Court's finding on the question of law involved. We, therefore, overruled the
preliminary objection, and requested the learned Attorney- General to proceed
with his address.
The contentions advanced by the learned
Attorney-General, Mr. Gupte, on behalf of the Union of India, may be summarised
as follows :
(i) 'Resignation' within the contemplation of
Proviso (a), to Article 217(1), takes place on the date on which the Judge of
his own volition chooses to sever his connection with his office, and not on
any other date. Since in terms of the letter, dated May 7, 1977, the Judge
proposed to sever his link with his office with effect from August 1, 1977, he
could hot be said to have resigned his office within the meaning of Proviso (a)
on May 7, 1977, or at any time before the arrival of the prospective date
indicated by him.
(ii) The letter, dated May 7, 1977, written
and sent by Appellant 2 to the President, read as a whole, is a mere intimation
of an intention to resign from a future date.
Before the arrival of that date, it was not
final and complete, nor a "juristic" act, because it had no legal
effect and could not sever the link of the Judge with his office or cut short
(iii) Since the mere sending of the letter,
dated May 7, 1977 to the President, did not constitute a final and complete act
of resignation, nor a juristic act, it could be withdrawn at any time before
August 1, 1977 upto which date it was wholly inoperative and ineffective.
(iv) The withdrawal by Appellant 2 of his
proposal to resign, does not offend public interest. The common law doctrine of
public policy cannot be invoked in such a case [Gheru Lal v. Mahadeo Das(1)].
(v) The general principle is that in the
absence of a provision prohibiting withdrawal, an intimation to resign from a
future date can be withdrawn at any time before it operates to terminate the
employment or the connection of the resignor with his office.
This principle, according to Mr. Gupte, was
enunciated by the Supreme Court as far back as 1954 in Jai Ram v. Union of
India(2); and followed by the Allahabad, Kerala, Delhi and Madhya Pradesh.
(1)  Supp. 2 S.C.R. 406, (2) A.I.R.
1954 S.C. 584.
19 High Courts in these cases : Sanker Datt
Shukla v. President, Municipal Board, Auraiya & Anr.(1); Bahori Lal Paliwal
v. District Magistrate, Bulandshahar(2); M. Kunjukrishnan Nadar v. Hon'ble
Speaker, Kerala Legislative Assembly & Ors(3); Y. K. Mathur & Anr. v.
The Commissioner, Municipal Corporation of Delhi & Ors.(4); Bhairon Singh,
Vishwakarma v. Civil Surgeon, Narsimhapur(5). The same principle has been
reiterated in Raj Kumar v. Union of India(6).
Mr. Gupte further referred to the case, Rev.
Oswald Joseph Reichal v. The Right Rev John Fielder, Lord Bishop of Oxford(7).
decided by the House of Lords in England, which has been relied upon by the
High Court-and submitted that Reichel's case stood on its own facts and was clearly
Mr. F. S. Nariman, appearing for Appellant 2,
adopted the arguments of Mr. Gupte. He reiterated with emphasis, that the
expression " resign his office" used in Proviso (a), means
"relinquish or vacate his office", and the requirement of this
expression is not satisfied unless and until the writing sent by the Judge
effects severance of the link between the Judge and his office and terminates
It is submitted that by holding that though
the letter of resignation in its terms, would effect termination of the tenure
prospectively from 1-8-77, yet it would be deemed to have caused immediately on
its despatch to and receipt by the President on 7-5-77, itself, curtailment of
the Judge's tenure of office up till 1-8-77, the High Court has engrafted in
Proviso (a), a wholly unwarranted fiction.
As against the above, Mr. Jagdish Swarap,
learned counsel for the Respondent has substantially reiterated the same
arguments which found acceptance with the High Court (majority).
Article 217(1) fixes the tenure of the office
of a High Court Judge It, provides that a Judge shall hold office until he
attains the age of 62 years. The three clauses of the Proviso to Article 217(1)
indicate that this tenure can be terminated before the Judge attains the age of
62 years, in four contingencies, namely, where he- (i) resigns his office in
the manner laid down in its clause (a);
(ii) is removed from his office in the manner
provided in Article 124(4) [vide its clause (b)];
(iii) is appointed a Judge of the Supreme
Court [vide its clause (c) ];
(iv) is transferred to any other High Court
(1) A.I.R. 1956 All. 70.
(2) A.I.R. 1956 All. 511 F.B.= (1956)2 All.
(3) A.I.R. 1964 Kerala 194.
(4) A.I.R. 1974 Delhi 58.
(5)  Labour industrial Cases 127 MP,
(6)  3 S.C.R. at p. 860.
(7) 14 A.C. 259.
20 Here, in this case, we, have to focus
attention on clause (a) of the Proviso. In order to terminate his tenure under
this clause, the Judge must do three volitional things :
Firstly, he should execute a "writing
under his hand".
Secondly, the writing should be
"addressed to the President". Thirdly, by that writing he should
"resign his office'. If any of these things is not done, or the
performance of any of them is not complete, clause (a) will not operate to cut
short or terminate the tenure of his office.
Ile main reasoning adopted by the learned
Judges of the High Court, (per R. B. Misra, M. N. Shukla and C. S. P. Singh,
JJ.) appears to be that since the act of Appellant 2 in writing and addressing
the letter, dated the 7th May, 1977, to the President, fully satisfied the
three-fold requirement of clause (a) of the Proviso, and nothing more was
required to be done under that clause either by the "Judge" or by the
President at the other end, the resignation was "complete",
"final" and "absolute". It was a complete
"juristic" act as immediately on its receipt by the President on the
7th, May 1977, itself,,it had the effect of cutting short the tenure of the
Judge up till the 1st August 1977; and, in the absence of a constitutional
provision warranting that course, it could not be withdrawn or revoked even
before the date, August 1, 1977, on which in terms of the letter dated the 7th
May, 1977, the resignation was to be effective.
Withdrawal is always linked with acceptance.
Where no acceptance is required and the resignation has been made in accordance
with the prescribed procedure, the process gets exhausted and the resignation
becomes a fait accompli.
Article 217(1), Proviso (a) of the
Constitution is a self- contained provision. It gives the Judge a unilateral
right to cut short his tenure by following the procedure prescribed therein, of
his own volition. Such a resignation to be effective does not require
acceptance by the President. Article 217 does not give a right to withdraw the
resignation, once given in accordance with the manner prescribed therein. Since
Article 217(1), Proviso (a) sets out a complete machinery with regard to the
resignation by a Judge, the right to withdraw a resignation cannot be implied,
the maxim being "expressum facit cessare tacitum" (when there is
express mention of certain things, then anything not mentioned is excluded).
Recognition of a right of withdrawal of resignation will leave the door wide
open to abuse and offend public policy.
It may be observed that the entire edifice of
this reasoning is founded on the supposition that the "Judge" had
completely performed everything which he was required to do under Proviso (a)
to Article 217(1). We have seen that to enable a Judge to terminate his term of
office by his own unilateral act, he has to perform three things. In the
instant case, there can be no dispute about the performance of the first two,
namely : (i) he wrote a letter under his hand (ii) addressed to the President.
Thus, the first two pillars of the ratiocinative edifice raised by the High
Court rest on sound foundations. But, is the same true about the third, which
indisputably is the chief prop of that edifice ? Is it a completed act of
resignation within the contemplation of Proviso (a) ? This is the primary
question that calls for an answer. If the answer to this 21 question is found
in the affirmative, the appeals must fail.
If it be in the negative, the foundation for
the reasoning of the High Court will fail and the appeals succeed.
Well then, what is the correct connotation of
the expression "resign his office" used by the founding fathers, in
Proviso (a) to Article 217(1) ? 'Resignation' in the Dictionary sense, means
the spontaneous relinquishment of one's own right. This is conveyed by the
maxim : Resionatio est juris propii spontanea refutatio (See Carl Jowitt's
Dictionary of English Law). In relation to an office, it connotes the act of
giving up or relinquishing the office. To "relinquish an office' means to
"cease to hold" the office, or to "loose hold of the office (cf.
Shorter Oxford Dictionary); and to
"loose hold of office", implies to "detach",
"unfasten", "undo or untie the binding Knot or link" which
holds one to the office and the obligations and privileges, that go with it.
In the general juristic sense, also, the
meaning of "resigning office" is not different. There also, as a
rule, both, the intention to give tip or relinquish the office and the
concomitant act of its relinquishment, are necessary to constitute a complete
and operative resignation (see, e.g. American Jurisprudence, 2nd Edn., Vol.
15A, page 80), although the act of relinquishment may take different forms or,
assume a unilateral or bilateral character, depending on the nature of the
office and the conditions governing it.
Thus, resigning office necessarily involves
relinquishment of the, office which implies cessation or termination of, or
cutting asunder from the office. Indeed, the completion of the resignation and
the vacation of the office, are the casual and effectual aspects of one and the
From the above dissertation, it emerges that
a complete and effective act of resigning office is, one which severs the link
of the resignor with his office and terminates its tenure. In the context of
Article- 217(1), this test assumes the character of a decisive test, because
the expression "resign his office"-the construction of which is under
consideration-occurs in a, Proviso which excepts or qualifies the substantive
clause fixing the office-tenure of the Judge upto the age of 62 years.
Before applying this test to the case in
hand, it is necessary to appreciate the true nature of the letter, dated May 7,
1977, sent by the Judge to the President.
The substantive body of this letter (which
has been extracted in full in a foregoing part of this judgment) is comprised
of three sentences only. In the first sentence, it is stated: "I beg to
resign my office as Judge, High Court of Judicature at Allahabad." Had
this sentence stood alone, or been the only content of this letter,, it would
operate as a complete resignation in praesenti, involving immediate
relinquishment of the office and termination of his tenure as Judge. But this
is not so. The first sentence is immediately followed by two more, which read
22 "I will be on leave till 31 .7. 1977. My resignation shall be effective
on 1.8.1977.", The first sentence cannot be divorced from the context of
the other two sentences and construed in isolation. It has to be read along
with the succeeding two which qualify it. Construed as a whole according to its
tenor, the. letter dated May 7, 1977, is merely an intimation or notice of, the
writer's intention to resign his office as Judge, on a future date, viz.,
August 1, 1977. For the sake of convenience, we might call this communication
as a prospective or potential resignation, but before the arrival of the
indicated future, date, it is certainly not a complete and operative
resignation because, by itself, it did not and could not, sever the writer from
the office of the Judge, or terminate his tenure as such.
Thus tested. sending of the letter dated May
7, 1977 by Appellant 2 to the President, did not constitute a complete and
operative resignation within the contemplation of the expression "resign
his office" used in Proviso (a) to Article 217(1). Before the, arrival of
the indicated future date (August 1, 1977), it was wholly inert, inoperative
and ineffective, and could not, and in fact did not, cause any jural effect.
The, learned Judges of the High Court (in
majority) conceded that Appellant 2 "cannot be taken to have resigned on a
date prior to 1st August, 1977", and "the vacation of a, seat may be
on (the) future date", "because he made his choice to resign from 1st
August 1977", yet, they hold that "the factum of resignation became
complete the moment respondent 1 (Shri Satish Chandra) in his handwriting, sent
a letter of resignation to the President of India" and on 7.5.77, itself,
cut short the date of retirement of the Judge from 1-9-86 to 1-8-77, and there
could be "no withdrawal of the same unless the Constitution so
provided." With respect, we venture to say that this reasoning is
convoluted logic spiraled up round a fiction for which there is no foundation
in the statute. To say that the resignation or relinquishment of his office by
the Judge could not take place before 1 .8. 77, and yet, the factum of
resignation became complete on 7-5-77, Would be a contradiction in terms. To
get over this inherent contradiction, the High Court (by majority) has
introduced a two-fold fiction: (1) That if a written communication to the
President, the Judge chooses to resign his office from a future date, the
resignation will be deemed to be effective and complete from the moment the
communication is sent to the President and received by him. (2) That since it
has not been provided in Proviso (a) or elsewhere in the Constitution, that
such communication of a "prospective" resignation can be withdrawn,
its withdrawal would be deemed to have been prohibited, on the maxim 'expressum
facit cessare tacitum.
No. 1 is manifestly incompatible with the
letter and intendment of Article 217(1), since by deeming the resignation to
have taken place on a date different from the date chosen by the Judge it
subverts his exclusive Constitutional right to resign,, his office with effect
from a date of his choosing. No. 2 is equally unjustified.
There is nothing in Proviso(a) or elsewhere
in the Constitution which expressly or implied- 23 ly forbids the withdrawal of
a communication by the Judge to resign his office before the arrival of the
date on which it has intended to take effect. Indeed, such a futuristic
communication or prospective resignation does not, before the indicated future
date is reached, become a complete and operative act of 'resigning his office'
by the Judge within the contemplation of Proviso (a) to Article 217(1).
Thus considered, it is clear that merely by
writing the letter to the President on May 7, 1977, proposing to resign with
effect from August 1, 1977, the Judge had not done all which he was required to
do to determine his tenure, of his own volition, under Proviso (a) to Article
217(1). He had not, as yet, resigned his office on May 7, 1977, itself, he had
not done everything which was necessary to complete the requirement of the
expression "resign his office". He had not-relinquished his office
and thus delinked himself from it. He had not-as the learned Judges of the High
Court have erroneously assumed-crossed the Rubicon-Ribicon was still afar, 85
days away in the hazy future. At any time, before that dead line (August 1,
1977) was reached, the Judge could change his mind and choose riot to resign,
and withdraw the communication dated May 7, 1977.
We have already seen that there is nothing in
the Constitution or any other law which prohibits the withdrawal of the
communication to resign from a future date, addressed by a, Judge to the
President, before it becomes operative.
Could he then be debarred from doing so on
the ground of public policy? In this connection, Shri Jagdish Swarup contended
that. but for the words "President and Vice-President", the language
of Proviso (a,) to Article 217(1) is identical with that of Proviso (a) to
Article 56 (1) of the Constitution which gives an identical right to, the
President to resign his office by writing under his hand, addressed to the
Vice- President. If this Court involves a principle-proceeded the
argument---whereby it permits a Judge who, is a Constitutional functionary of
the same class as the President or the Vice-President, whereby he can withdraw
his resignation, it will lead to startling results. The Constitutional
functionaries would misuse such implied power of withdrawal of resignation. The
President may hold the Parliament to ransom and make a farce of Parliamentary
sovereignty and the functioning of the Constitution. On these premises, it was
urged that public policy demands that no. such interpretation should be put on
these Constitutional provisions which would lead to abuse of power by the
The contention appears to be misconceived.
The argument assumes that a tender of
prospective resignation is always motivated by sinister considerations and,
therefore, to permit its withdrawal is never in the public interest. We are
unable to concede this as a rule of universal application. Any number of cases
are conceivable where a prospective resignation is tendered with the best of
motives. A Judge renowned for his conscientiousness and forensic skill may send
an intimation under his hand to the President proposing to, 24 resign from a
future date, 2 months away, covering this interregnum by two months' leave due
to him, in the belief, founded on his doctor's advice, that he is stricken with
a malady which will progressively render him deaf in two.
months' time. The motive behind them, tender
is that the Judge feels that he will no longer be able to discharge his
official duties to the entire satisfaction of his conscience. But before the
date on which the prospective resignation is to take effect, a surgical
operation completely and permanently cures him of the disease and restores his
full hearing power, and the Judge immediately thereupon, sends a communication
withdrawing the tender of his resignation. Will not such withdrawal be in the
interest of the public and justice to the Judge? Conversely, will not refusal
of such withdrawal deprive the public of the benefit of his forensic talents in
exposition of law and at the same time work hardship and injustice to the Judge?
It must be remembered that the doctrine of public policy is only a branch of
the common law, and its principles have been crystallized and its scope well
delineated by judicial precedents. It is sometimes described as "a very
unruly horse". Public policy, as Burroughs, J. put it in Fauntleroy's
case, "is a restive horse and when you get astride of it, there is no
knowing where it will carry you".
Public policy can, therefore, be a very
unsafe, questionable and unreliable ground for judicial decision and Courts
cannot, but be very cautious to mount this treacle, rows horse even if they
must. This doctrine, as pointed out by this Court in Gherulal Parekh's case
(ibid), can be applied only in a case where clear and undeniable, harm to the
public is made out. To quote the words of Subba Rao, J.
(as he then was) : "Though theoretically
it may be permissible to, evolve a new head (of public policy) under
exceptional circumstances of a changing world, it is advisable in the, interest
of stability of society not to make any attempt to discover new heads in these
There are no circumstances, whatever, which
would show that the withdrawal of the resignation by the appellant would cause
harm to the public or even to an individual. The contention, therefore, is
Shri Jagdish Swarup's argument that a right
to withdraw such a resignation will have wide and unhealthy repercussions on
the other Constitutional functionaries, particularly the President, and
encourage them to abuse this right, appears to be a false alarm. We are here
considering the case of withdrawal of a 'prospective resignation' by a Judge of
a High Court and not of any other Constitutional functionary.
it may not be correct to say that whatever
principle we evolve with reference to the interpretation of Article 217(1),
Proviso (a), will automatically govern the withdrawal of such a prospective
resignation by the President of India because the provisions of Article 56
relating to a resignation by the President are not, in all respects, identical
with those of Article 217. There is no provision in Article 217 corresponding
to clause (2) or clause (1) (c) of Article 56, and in this case in accordance
with the well-settled practice of the court, we refrain from expressing any
opinion with regard to the interpretation and effect of these distinctive
provisions in Article 56.
25 We are also unable to agree with the High
Court that the mere sending of the letter, dated May 7, 1977 by the Judge to
the President and its receipt by the latter, constituted a complete juristic
act. By itself, it did not operate to terminate the office tenure of the Judge,
and as such, did not bring into existence any legal effect. For the same
reason, the principle underlying Section 19 of the Transfer of Property Act is
The general principle that emerges from the
foregoing conspectus, is that in the absence of anything to the contrary in the
provisions governing the terms and conditions of the office/post, an intimation
in writing sent to the competent authority by the incumbent, of his intention
or proposal to resign his office/post from a future specified date, can be
Withdrawn by him at any time before it becomes effective. i.e. before it effects
termination of the tenure of the office/post or the employment.
This principle first received the imprimatur
of this Court in the context of a case of a self-sought retirement from
service, in Jai Ram v. Union of India (supra). In that case, the plaintiff
entered the service of the Government as a Clerk in the Central Research
Institute, Kasauli, on May 7, 1912. Rule 56(6) (i) of Chapter TX of the
Fundamental Rules, which regulated the Civil Services, provided that a
ministerial servant may be required to retire at the age of 55, but should
ordinarily be retained in service if he continues efficient, till the age of 60
years. The plaintiff was to complete 55 years on November 26, 1946. On the 7th
May 1945. he wrote a letter to the Director of the Institute to the following
effect "Sir, having completed 33 years' service on the 6th instant, I beg
permission to retire and shall feel grateful if allowed to have the leave
admissible." The Director refused permission on the ground that the
plaintiff could not be spared at that time. The plaintiff renewed his prayer by
another letter, dated 30th May 1945, and also, asked for leave preparatory to
retirement-four months on average play and the rest on half average pay-from
1st of June 1945, or the date of his availing the leave, to the date of
superannuation which was specifically stated to be the 26th of November 1946.
This request was also declined. To subsequent requests to the same effect, also
met the same fate. On May 28, 1946, plaintiff made a fourth application
repeating his request. This time, the Director of the Institute sanctioned the
leave preparatory to retirement on average pay for six months from 1-6-1946 to
30-11-1946, and on half average pay for five months and 25 days thereafter, the
period ending on 25-5-1947. Just 10 days before this period of leave was due
to, expire, the plaintiff on May 16, 1947 sent an application to the Director
stating that he bad not retired and asked for per- mission to resume his duties
immediately. In reply, the Director informed him that he could not be permitted
to resume his, duties as be had already retired, having voluntarily proceeded
on leave preparatory 3-211 SCT/78 26 to retirement. The Plantiff made
Ultimately, the Government of India, by a
letter dated 28-4- 48 rejected his representation, repeating the reasons
intimated by the Director earlier to the plaintiff- In special appeal before
this Court, two points were urged on behalf Of the plaintiff-appellant. First,
that under Rule 56(b) (i), the age of retirement is not 55 but 60 years, and
before a Government servant could be required to retire at 55, it is incumbent
upon the Government to give him an opportunity to represent against his
premature retirement in accordance with the provisions of Section 240(3) of the
Government of India Act, 1935; and since this was not done, the order
terminating his services, was invalid. Second, that although the plaintiff on
his own application, obtained leave preparatory to retirement, yet there was nothing
in the Rules which prevented him from changing his mind at any subsequent time
and expressing a desire to continue in service, provided hi indicated this
intention before the period his leave expired.
B. K. Mukherjee, J. (as he then was),
speaking for the Court, negative the first contention on the ground that since
the plaintiff had himself sought permission for retirement at the age of 55
years, it was a useless formality to asks him to show cause as to why his
services should not be terminated. While disposing of the second contention,
which had lost its force in view of the Courts decision on the first point, the
Court made these crucial observations:
"It may be conceded that it is open to a
servant, who has expressed a desire to retire from service and applied to his
superior officer to give him the requisite permission, to change his mind
subsequently and ask for cancellation of the permission thus obtained;
but, be can be allowed to do so as long as he
continues in service and not after it has terminated." The rule enunciated
above was reiterated by this Court in Raj Kumar v. Union of India(1), in these
"When a public servant has invited by
his letter of resignation determination of his employment, his services
normally stand, terminated from the date on which the letter of resignation is
accepted by the appropriate authority, and in the absence of any law or rule
governing the conditions of his service to the contrary, it will not be open to
the public servant to withdraw his resignation after it is accepted by the
appropriate authority. Till the resignation is accepted by the appropriate
authority in consonance with the rules governing the acceptance, the public
servant concerned has locus poenitentiae but not thereafter." It was also
observed that, on the plain terms of the resignation letters of the servant
(who was a member of the I.A.S.), the resignation became effective as soon as
it was, accepted by the appropriate authority.
(1) 1968 3 S.C.R. 857.
27 The learned Judges of the High Court (in
majority), if we may say so with respect, have failed to appreciate correctly
the amplitude and implications of this rule enunciated by this Court in Jai Ram
v. Union of India (supra). R. B. Misra, J. bypassed it casually on the short
ground that the above extracted observation was only "casually made"
by the Supreme Court in a case of retirement, M. N. Shukla, J. did not even
refer to it. C.S.P. Singh, J. tried to distinguish it with the summary
"Jai Ram's case was a case of
retirement, and the request for retirement required acceptance. The act was not
complete till accepted. In such a situation, the request could definitely be
withdrawn. This case is not helpful in case where no acceptance is
required." Before us, Shri Jagdish Swarup has reiterated the same
In our opinion, none of the aforesaid reasons
given by the High Court for getting out of the ratio of Jai Ram's case, (supra)
Firstly, it was not a casual enunciation. It
was necessary to dispose of effectually and completely the second point that
had been canvassed on behalf of Jai Ram. Moreover, the same principle was
reiterated pointedly in 1968 in Rai Kumar's case. Secondly, a proposal to
retire from service/office and a tender to resign office from a future date.,
for the purpose of the point under discussion stand on the same footing.
Thirdly, the distinction between a case where the resignation is required to be
accepted and the one where no acceptance is required makes no difference to the
applicability of the rule in Jai Ram's case.
It will bear repetition that the general
principle is that in the absence of a legal, contractual or constitutional bar,
a 'prospective' resignation can be withdrawn at any time before it becomes
effective, and it becomes effective when it operates to terminate the
employment or the office- tenure of the resignor. This general rule is equally
appli- cable to Government servants and constitutional functionaries. In the
case of a Government servant/or functionary who cannot,-under the conditions of
his service/or office, by his own unilateral act of tendering resignation, give
up his service/or office, normally, the tender of resignation becomes effective
and his service/or office-tenure terminated, when it is accepted by the
competent authority. In the case of a Judge of a High Court, who is a
constitutional functionary and under Proviso (a) to Article 217(1) has a
unilateral right, or privilege to resign his office, his resignation becomes
effective and tenure terminated on the date from which he, of his own volition,
chooses to quit office. If in terms of the writing under his hand addressed to
the President, he resigns in praesanti, the resignation terminates his office-
tenure forthwith, and cannot therefore, be withdrawn or revoked thereafter.
But, if he by such Writing chooses to resign from a future date, the act
resigning office is not complete because it does not terminate his tenure
before such date and the Judge. can at any time before the arrival of that prospective
date on which it was intended to be effective, withdraw it, because the
Constitution does not bar such withdrawal.
28 The learned Attorney-General has cited
authorities of the Allahabad. Kerala, Delhi and Madhya Pradesh High Courts,
wherein the rule in Jai Ram's case was followed. The High Court has tried to
distinguish these cases and in regard to some of them, said that they were not
rightly decided. We do not want to burden this judgment with a discussion of
all those decisions. It will be sufficient to notice two of them, in which
issues analogous to those which arise before us, were pointedly discussed.
The first of those cases is, M. Kunjukrishnan
Nadar v. Hon'ble Speaker, Kerala Legislative Assembly (supra). The petitioner
in that case became a member of the Kerala Legislative on election in February
1960. On November 23, 1963, he wrote to the Speaker.
"Sir, As I wish to devote more time for
meditation and religious purposes, I shall not be able to continue as a Member
of the Legislative Assembly, Kerala. So,, I request you to kindly accept this
letter as my resignation as a Member of this Assembly, to take offect from
1-12-1963." On November 26, 1963, the Speaker read the letter in the
Assembly, announcing thereby the petitioner's resignation to take effect on
December 1, 1963.
On November 29, 1963, the petitioner wrote to
the Speaker "Sir, In my letter dated 23-11-1963, 1 have expressed my
intention to resign my membership of the Legislative Assembly from the 1st of
December, 1963. After mature consideration, I feel that it will be proper not
to resign at this juncture.
I therefore hereby withdraw my letter of
resignation dated 23-11-1963." This letter was received by the Speaker on
November 30, 1963. This letter was not given heed to, and a Notification was
published in the Kerala Gazette dated December 10, 1963, saying that the
petitioner "has resigned his seat in the Kerala Legislative Assembly from
1st December 1963". The petitioner challenged this Gazette Notification,
praying that it be declared null and void and of no effect. He claimed a
further declaration that he continued to be a Member of 'the Kerala Legislative
On these facts, Article 190(3) of the
Constitution, as it stood prior to its amendment by Constitution Amendment
(Thirty-third Amendment Act, 1974, came up-for interpretation. At that time,
the material part of Article 190(3) ran as under "(3). If a member of a
House of the Legislature of a State- (a) becomes subject to any of the
disqualifications mentioned in cl. (1) of Art. 191; or 29 (b) resigns his seat
by writing under his hand addressed to the Speaker or the Chairman, as the case
his seat shall thereupon become vacant."
It will be seen that at that time, there was no provision in this Article requiring
such resignation to be accepted by the Speaker before it could become
effective. Clause (b) of Article 190(3), as it stood at that time, was, but for
the words "the Speaker or the Chairman" and the last phrase "his
seat shall thereupon become vacant", identical with clause (a) of the
Proviso to Article 217(1). Indeed, what is expressly provided by adding the
words "his seat shall thereupon become vacant" in clause (b) of Art.
190(3), is implicit in clause (a) of the proviso to Article 217(1).
Two questions arose for determination : (i)
Whether the letter dated 23-11-63, constituted a valid resignation under
Article 190(3); and (ii) if so, whether it could be withdrawn by the Member
before the future date on which it was intended to be effective. A learned
single Judge of the High Court answered these questions in the affirmative,
with these observations ".......... the petitioner's letter of November
23, 1963, has to be held a letter resigning his seat in the Assembly on
December 1, 1963, deposited with the Speaker on November 23, 1963. It remains.
a mute letter till December 1, 1963, when alone it can speak with effect. On
November 29, 1963, the petitioner has withdrawn that letter by writing under
his hand addressed to the Speaker himself;......
It is in effect the neutralization of the
latent vitality in the former letter deposited with the Speaker. The withdrawal
nullifies the entrustment or deposit of the letter of resignation in the hands
of the Speaker, which must thereafter be found to have become non est in the
eye of law. The absence of a specific provision for withdrawal of prospective
resignation in the Constitution or the Rules is immaterial as basic principles
of law and procedure must be applied wherever they are relevant." R. B.
Misra, J. felt "difficulty in agreeing with the observation (in the above
case) that the letter of resignation to be effective on a future date remains
deposited with the Speaker or remains a mute letter till the arrival of that
date when alone it can speak with effect".
Singh, J. also expressed that this Kerala
case had not been decided on correct principles.
In our opinion, what has been extracted above
from the decision in the Kerala case, correctly enunciates the principles that
prospective resignation remains mute and inoperative till the date on which it
was intended to take effect is reached, and can be, withdrawn and rendered non
est at any time before such date.
The next decision worthy of notice is Y. K.
Mathur v. The Municipal Corporation of Delhi (supra). In that case, two
Municipal 30 Councillors of the Corporation of Delhi sent their resignation
letters on November 16, 1972 to the Mayor of the Municipal Corporation,
resigning their seats. One of those letters was a resignation in praesenti and
was dated November 16, 1972. The other letter of resignation sent by O. P.
Jain, reads as under "I resign from my seat. Please accept.
Sd/- Om Prakash Jain 16. 12." This
letter being in the nature of a post-dated cheque, was construed as a letter of
resignation to be effective from future date, viz. December 16, 1972. On these
premises, question arose whether this resignation could be withdrawn by the
Member concerned before that date. Sachar J., speaking for the Division Bench,
answered this question, in these terms:- "It is the free volition of the
councillor concerned as to the date from which he wishes to resign. There is no
logic in saying that even though a councillor deliberately mentions in his
resignation letter that it should be effective from a given future date, he
would nevertheless be deemed to have resigned from an earlier date i.e. date on
which the letter is delivered. This would be contrary to the deliberately
expressed intention of the councillor to resign from a particular future date.
But is there any prohibition that once the resignation letter has been sent
which is to be effective from a future date it cannot be withdrawn even before
that date ? The statute does not in any way limit the authority of the
councillor who has sent his resignation' from a prospective date to withdraw it
before that date is reached. The resignation which is to be effective from a
future date necessarily implied that if that date has 'not reached it would be
open to the councillor concerned to withdraw it." In support of this
enunciation, the learned Judge relied on the ratio of the decisions of this
Court in Jai Ram v. Union of India, and Rai Kumar v. Union of India (ibid).
It was also contended-as has been argued
before us-that if a resignation has been sent prospectively, the only effect is
that the sea,, would become vacant from that date, but the resignation would be
effective from the date it was delivered to the competent autho- rity. The
Court repelled this argument with these pertinent observations :- "Under
Section 33(1) (b), both the resignation and the vacancy of the seat are
effective from the same time. There cannot be different times, one for
resignation and the other for vacation of seat. Vacancy will only occur when 31
resignation is effective, and if it is from future date both resignation and
vacation of seat will be effective simultaneously." The approach adopted
to the. problem by the Delhi High Court' appears to be correct in principle,
and meets our approval.
We do not want to add more to the volume of
our judgment by noticing the numerous decisions of the English and American
Courts that have been referred to by the High Court in the judgment. It will
suffice to notice one of those cases, which appears to have been relied upon by
the High Court "as the best authority" in support of its reasoning
that the letter of resignation, dated May 7, 1977, by Appellant 2, had become
"final or irrevocable on that very day when it was received by the
President, "though he could not be asked to actually relinquish his post
prior to 1-8-1977." That English case is Reichal v. Bishop of Oxford(1)
The facts of that case were as follows :
Scandal having arisen with regard to the
conduct of a Vicar, he was informed by the Bishop that he must either submit to
an inquiry or cease to hold his benefice. Thereupon, in accordance with a
proposal made by the Bishop in the interests of the parish and in mercy to the
Vicar, the Vicar on the 2nd of June executed before witnesses, but not before a
notary, an unconditional deed of resignation and sent it to the Bishop's
Secretary on the understanding that the Bishop would postpone formal acceptance
until the 1st of October. On the 10th of June the Vicar executed a deed
canceling and revoking the deed of resignation and on the 16th of July he
communicated the fact to the Bishop's Secretary. The Bishop after the
revocation, signed a document dated the 1st of October accepting the
resignation and declaring the vicarage void.
The Vicar brought an action against the
Bishop and the patrons of the benefice, claiming a declaration that he was
Vicar, the resignation was void,-and an injunction to restrain the defendants
from treating the benefice as vacant.
The House of Lords, affirming the decision of
the Court of Appeal (35 Ch. D. 48), held that the resignation was voluntary,
absolute, validly executed and irrevocable and that the action could not be
The principal contention canvassed before the
House of Lords by the appellant Vicar was that assuming the resignation to be valid,
it was naught without the Bishop's acceptance.
The acceptance of the Ordinary is absolutely
necessary to avoid a living. Until acceptance the effect of the incumbents
resignation is to make the benefice voidable, not void; he remains incumbent
with all his powers and rights, including the power of revocation; he is in the
position (at the utmost) of one who has made a contract to resign.
(1)  14 A.C. 259.
32 The Noble Lords rejected this contention.
Lord Halsbury L.C. observed :
"The arrangements for resignation on the
one side and acceptance on the other seem to me to have been consummated before
the supposed withdrawal of the resignation of Mr. Reichal.
It is true the Bishop agreed not to execute
the formal document to declare the benefice vacant till the following 1st of
October; but I decline to decide that when a perfectly voluntary and proper
resignation has once been made and by arrangement a formal declaration of it is
to, be postponed, that is not a perfectly binding transaction upon both the
parties to it; and I doubt whether in any view of the law such an arrangement
could have been put an end to at the option of only one of the parties."
Lord Watson further amplified :
"His resignation was delivered in
pursuance of a mutual, agreement which rendered formal or other acceptance
altogether unnecessary; the terms of the agreement showing plainly that the
Bishop not merely was ready to accept, but insisted upon having it, in order
that it might receive full effect upon the 1st of October following. The
agreement was perfectly lawful, it being entirely within the discretion of the
Bishop to judge whether the adopted of Proceedings against the appellant, or
his unconditional resignation as from a future date, would most conduce to the
spiritual interest of the parish. The appellant assented to the arrangement,
and on the 2nd of June 1886 did all that lay in his power to complete it......
He cannot in my opinion be permitted to upset the agreement into which he
voluntarily agreed...... upon the allegation, that there was no formal
acceptance of his resignation till 1st of October 1886." Lord Herschell
"I do not think the word
"acceptance" means more than the assent of the Bishop, or that it
need take any particular form. Now, in the present case, the Bishop had.
intimated to the plaintiff that he was willing to assent to his resignation,
and it was in pursuance of this intimation that the resignation was placed in
the hands of the Bishop. At the time the Bishop received it, and thenceforward
down to and after the time of the alleged revocation, the Bishop was an
assenting party to the resignation." While declining the contention of the
appellant, the Noble Lord closed the discussion on the point with this
significant reservation :
"It is, however, unnecessary in the
present case to go to the length of saying that a resignation can never be
withdrawn without the consent of the Bishop, for I am of opinion that it
certainly cannot be so under circumstances such as those to which I have drawn
attention." 33 Reichal is no authority for the proposition that an
unconditional prospective resignation, without more, normally becomes absolute
and operative the moment it is conveyed to the appropriate authority. The
special feature of the case was that Reichal had, of his own free will, entered
into a "perfectly binding agreement" with the Bishop according to
which, the Bishop had agreed to abstain from commencing an inquiry into the
serious charges against Reichal if the latter tendered his resignation. In
pursuance of that lawful agreement, Reichal tendered his resignation and did
all to complete it, and the Bishop also at the other end, abstained from
instituting proceedings against him in the Ecclesiastical Court. The agreement
was thus not a nudem pactum but one for good consideration and had been acted
upon and "consummated before the supposed withdrawal of the resignation
of. Mr. Reichal", who could not, therefore, be permitted ",to upset
the agreement" at his unilateral option and withdraw the resignation
"without the consent of the Bishop". It was in view of these
exceptional circumstances, Their Lordships held Reichal's resignation had
become absolute and irrevocable. No extraordinary circumstances of this nature
exist in the instant case.
In the light of all that has been said above,
we hold that the letter, dated May 7, 1977 addressed by Appellant 2 to the
President, both in point of law and substance, amounts but to a proposal of
notice of intention to resign at a future date (1-8-1977) and not being an
absolute, complete resignation operative with immediate effect, could be and,
in fact, had been validly withdrawn by the said Appellant through his letter,
dated July 15, 1977, conveyed to the President.
Accordingly, we allow these appeals, set
aside the majority judgment of the High Court and dismiss the writ petition,
leaving the parties to bear their own costs throughout.
FAZAL ALI, J. : These two appeals by
certificate are directed against an order of the Allahabad High Court issuing a
writ of Quo Warranto against Justice Satish Chandra, a Judge of the Allahabad
High Court on the ground that he ceased to be a Judge with effect from 1st
August, 1977 as he was not competent to withdraw the resignation submitted by
him earlier. Appeal No. 2644/1977 has been filed by the Union of India
supporting the case of the second respondent Satish Chandra while appeal No.
2655/'1977 has been filed by the second respondent Satish Chandra himself
against the order of the High Court as indicated above. As the points involved
in the two appeals are identical and arise from the same judgment, I propose to
deal with the two, appeals by a common judgment.
The facts of the case lie within a narrow
compass and the whole case turns. upon the interpretation of Article 217 (1)
(a) of the Constitution of India. I would also like to mention that the
question of law that has to be determined in this case in one of first
impression and no direct authority of any court in India or outside appears to
be available in order to decide this case. There are however number of
authorities from which certain important principles can be deduced which may
assist me in adjudicating the point in issue.
34 Justice Satish Chandra hereinafter
referred to as the second respondent was a practising lawyer of the Allahabad
High Court. He was appointed as a Judge of the Allahabad High Court on 7th
October,- 1963 and was later made _permanent on 4th September, 1967. Since then
he had been continuing as a Judge of the said High Court.
On 7th May, 1977 the second respondent wrote
a letter to the President of India resigning his office with effect from 1st
August, 1977. The second respondent however indicated to the President that he
would proceed on leave from 7th May, 1977 to 31st July, 1977 the period
intervening between the application and the date from which the resignation was
to be effective.
On 15th July, 1977 however the second
respondent wrote ano- ther letter to the President by which he revoked the
resignation which he had sent on the 7th May, 1977 and prayed that the
communication containing the resignation may be treated as null and void. In
order to understand the exact implication of the intention of the second
respondent it may be necessary to extract the two letters in extenso "TO
The President of India, New Delhi.
Sir, I beg to resign my office as Judge, High
Court of Judicature at Allahabad.
I will be on leave till 31st of July, 1977.
My resignation shall be effective on 1st of August, 1977.
With my respects,
"TO The President of India, New Delhi.
Sir, I beg to revoke and cancel the intention
expressed by me to resign on 1st of August, 1977, the office of Judge, High
Court at Allahabad, in my letter dated 7th May, 1977. That communication may
very kindly be treated as null and void.
Thanking you and wishing to remain.
35 A careful perusal of the first letter
leaves absolutely no room for doubt that the Judge had clearly intended to
resign his office with effect from 1st August, 1977. Similarly, the second
letter shows the unequivocal intention of the second respondent to revoke the
resignation sent by him earlier. The reasons for the resignation have been
given neither in the first letter nor in the second. The question that has been
mooted before the High Court was whether or not having resigned his office the
second respondent had any jurisdiction to revoke his first letter sending his
resignation. It might also be mentioned that it is common ground that before
the second letter was written to the President the first letter had not only
been communicated to but was actually received by the President as found by the
majority judgment of the High Court. Thus, the sole question to be determined in
this case is whether it was within the competence of the second respondent to
revoke the resignation sent by him to the President by his letter dated 7th
May, 1977 after the same had been communicated to and received by the
President. The stand taken by the Attorney General before us was that as the
second res-. pondent had categorically expressed his intention in the first
letter that he would resign only with effect from 1st August, 1977, it was open
to him to withdraw his resignation at any time before the crucial date was
reached and there was no provision in the Constitution which debarred the
appellant from doing so.
The Attorney General, however, conceded
before us that having regard to the provisions of Article 217 there is
absolutely no question of the resignation of a Judge being effective only on
the acceptance of the same by the President. In other words, the Attorney
General submitted that the resignation would become effective from the date
mentioned therein and the question of the acceptance of resignation by the
President would not arise in case of constitutional functionaries like judges
of the High Courts.
Thus, in view of the concession of the
Attorney General and the provisions of Article 217 any resignation submitted by
a Judge was not, dependent on its acceptance by the President and would operate
ex proprio vigore from the date mentioned in the letter of resignation. It
pears that after the second respondent sought to revoke his resignation an
application praying for a writ of quo warranto was filed by the respondent
Gopal Chandra Misra & Ors. before the Allahabad High Court on the ground
that the second respondent had no right to withdraw the resignation. The writ
was heard by a Full Bench consisting of R. B. Misra, M.
N. Shukla, Hamid Hussain, S. B. Malik and C.
S. P. Singh, JJ. and the High Court by a majority judgment accepted the writ
petition and issued a writ of quo warranto holding that the second respondent
ceased to be a Judge as he was not competent to withdraw his resignation once
the same had been communicated to and in fact reached the President. The
learned Judges who took the majority view against the second respondent were R.
B. Misra, M. N. Shukla and C. P. S.
Singh, JJ. whereas Hamid Hussain and S. B.
Malik, JJ. were of the view that it was open to the second respondent to
withdraw his resignati on at any time before the date from which the
resignation was to be effective and were, therefore, 36 of the opinion that the
writ petition should be dismissed.
It seems to me that the High Court has
devoted a considerable part of its judgment to the consideration of two
questions which were really not germane for the decision of the point in issue.
Secondly, the High Court appears to have exhaustively considered the question
of the theory of pleasure which obviously did not apply to a Judge of the High
Court appointed under the Indian Constitution and after the said Constitution
had come into force. In other words, a Judge appointed under Article 217 cannot
be said to hold his assignment at the pleasure of the President, but under the
provisions of Article 217 he was to hold his office until the following
contingencies arose :
1. The Judge attained the age of 62 years,;
2. The Judge was removed from his office
under Article 124 of the Constitution;
3. The Judge was transferred to another High
Court under Article 222;
4. The Judge resigned his office by writing a
letter under his hand addressed to the President.
It is needless to state that a Judge vacates
his office the moment he dies, and although this contingency is not mentioned
in Article 217 yet it follows from the very nature of things. It would thus be
clear that the constitutional provisions embodied in Article 217 have expressly
provided for the various contingencies in which a Judge of the High Court may
vacate his office or cease, to be a Judge. The relevant part of Article 217 may
be extracted thus :
"217 : Appointment and conditions of the
office of a Judge of a High Court :
(1)Every Judge of a High Court shall be
appointed by the President by warrant under his hand and seal after
consultation with the Chief Justice of India, the Governor of the State, and,
in the case of appointment of a Judge other than the Chief Justice, the, Chief
Justice of the High Court, and shall hold office, in the case of an additional
or acting Judge, as provided in Article 224, and in any other case, until he
attains the age of sixty- two years:
Provided that- (a)a Judge may, by writing
under his hand addressed to the President, resign his office;
(b)a Judge may be removed from his office by
the President in the manner provided in clause (4) of Article 124 for the
removal of a Judge of the Supreme Court;
(c)the office of a Judge shall be vacated by
his being appointed by the President to be a Judge of the Supreme 37 Court or
by his being transferred by the President to any other High Court within the
territory of India".
While analysing the various clauses of
Article 217 it is pertinent to observe that while clause (a) contains an express
provision empowering a Judge to resign, there is absolutely no provision which
confers upon him any power to withdraw or revoke his resignation once the same
has been submitted to the President.
This is one of the moot points that has
engaged the attention of the, High Court as also of this Court in deciding the
issue. The majority view was of the opinion that in the absence of any express
provision to empower the Judge to revoke his resignation, the Judge was not
competent to withdraw his resignation having once submitted the same.
The minority view of the High Court which has
been relied upon by the Attorney General and the second respondent proceeds on
the doctrine 'of implied powers under which it is said that the power of
submitting a resignation carries with it the power of revoking the same before
the resignation becomes effective.
I shall deal with these points a little later
and before that I would like to indicate the position and the status conferred
by the Constitution on a High Court Judge. The first thing which is manifestly
plain is that there is no relationship of master and servant, employer and
employee between the President and the Judge of the High Court, because a Judge
is not a Government servant so as to be governed by Article 310 of the
Constitution. A Judge of the High Court appointed under Article 2,17 has a
special status and is a constitutional functionary appointed under the
provisions of the Constitution by the President. The mere fact that the
President appoints him does not make him the employer of the Judge. In
appointing a Judge of the High Court ' the President is discharging certain
constitutional functions as contained in Article 217(1). This aspect of the
matter was considered by this Court in the case of Union of India v.
Sankalchand Himatlal Sheth & Anr.(1) where Krishna Iyer, J. dwelling on
this aspect observed as follows :
"So it is that we must emphatically
state a Judge is not a government servant but a constitutional functionary. He
stands in a different category. He cannot be equated with other 'services'
although for convenience certain rules applicable to the latter may, within
limits, apply to the former. Imagine a Judge's leave and pension being made
precariously dependent on the executive's pleasure- To make the government-not
the State-the employer of a superior court Judge is to unwritten the
It is, therefore, indisputable that a Judge
of the High Court enjoys a special status under the Constitution, because of
the very high position that he holds and the dignity and decorum of the office
that he has to maintain.
(1)  1 S.C.R. 423.
38 The special guarantees contained in
Article 217 are for the purpose of ensuring the independence of the judiciary
as observed by Chandrachud, J. in the case of Union of India v. S. H. Sheth
& Anr. (supra) :
"Having envisaged that the judiciary,
which ought to act as a bastion of the rights and freedom of the people, must
be immune from the influence and interference of the executive, the Constituent
Assembly gave to that concept a concrete form by making various provisions to
secure and safeguard the independence of the judiciary".
The High Court Judges are the repository of
the confidence of the people and the protectors of the right and liberty of the
subjects. Having, regard, therefore, to the onerous duties and the sacrosanct
functions which a Judge of the High Court has to discharge he has to act or
behave in a manner which enhances the confidence of the people in the
judiciary. The Constitution itself contains a number of provisions for
promoting an independent judiciary and striving for a complete separation of
the Judiciary from the Executive.
Having regard to these circumstances
therefore once a Judge decides to accept the high post of a High Court Judge he
has to abide by certain fixed principles and norms as also some self imposed
restrictions in order to maintain the dignity of the high office which he holds
so as to enhance the image of the court of which he is a member and to see that
the great confidence which the people have in the courts is not lost. To resign
an office is a decision to be taken once in a life time and that too for very
special and cogent reasons because once such a decision is taken it cannot fie
recalled as a point of no return is reached. Indeed, if Judges are allowed to
resign freely and recall the resignation at their will this privilege may be
used by them as a weapon-for achieving selfish ends or for striking political
Not that the Judges are likely to take,
resort to these methods but even if one Judge does so at any time the image of
the entire court is tarnished. It was, in my opinion, for these reasons that
the High Court Judges have been assigned a special place by the constitution
and are not equated with other services, however high or important they may be.
Thus, in these circumstances, therefore, it is manifest that any decision that
the Judge may take in regard to resigning his office must be taken after due
care and caution, full and complete deliberation and circumspection, so that
the high office which he holds is not held to ridicule. The power to resign is
not intended to be used freely or casually so as to render the same as a farce
because after a Judge resigns important and far-reaching consequences flow.
Shukla, J. in the judgment under appeal has very aptly and adroitly observed as
follows. :- "Therefore, if a Judge is permitted to recent his regisnation,
born of free volition, it would savour of a precipitance which would not redound
to his credit. A voluntary resignation of a High Court Judge deserves to be
looked 39 upon with utmost sanctity, and cannot be treated lightly as if it was
the outcome of a momentary influence........ In other words, a Judge may resign
and then with impunity rescind his resignation and thus go on repeating the
process at his sweet will a.
That would-be ridiculous and reduce the
declaration of resignation by a Judge to a mere farce." I find myself in
complete agreement with the observations made by the learned Judge and fully
endorse the same. What is good of Article 217 equally applies to other similar
constitutional functionaries like the President, the Vice-President, the
Speaker, the Deputy Speaker. and the Supreme Court Judges.. So far as the
President is concerned, Article 56(a) contains a provision identical to Article
217(a) and runs thus :
"The President may, by writing under his
hand addressed to the Vice-President, resign his office' So far as the
Vice-President, is concerned, the provision is contained in Article 67(a) and
runs thus :- "A Vice-President may, by writing under his hand addressed to
the President, resign his office".
So far as the Speaker and the Deputy Speaker
are concerned, the provision is contained in Article 94 which runs thus :-
"Vacation and resignation of, and removal from, the offices of Speaker and
Deputy Speaker : A member holding office as Speaker or Deputy Speaker of the
House of the people- (a) shall vacate his office if he ceases to be a member of
the House of the People;
(b) may at any time, by writing under his
hand addressed, if such member is the Speaker, to the Deputy Speaker, and if
such member is the Deputy Speaker, to the Speaker, resign his office, and (c)
may be removed from his office by a resolution of the House of the People
passed by a majority of all the then members of the House:
Provided that no resolution for the purpose
of clause (c) shall be moved unless at least fourteen days' notice has been
given of the intention to move the resolution :
Provided further that, whenever the House of
the People is dissolved, the Speaker shall not vacate his office until
immediately before the first meeting of the House of the people after the
So far as the Supreme Court Judges are
concerned, the provision is contained in Article 124(2) (a) which runs thus 40
"A Judge may, writing under his hand addressed to the President, resign
For all these constitutional functionaries a
special procedure has been prescribed by the Constitution regulating their
resignation and in each one of these cases two things are conspicuous. First,
that there is absolutely no provision for revocation of, a resignation, and,
secondly, that there is nothing to show that in the case of these functionaries
the resignation would become effective only on being accepted by the authority
concerned. It was contended by Mr. Jagdish Swarup, counsel for the respondents
that if any of these functionaries are allowed to withdraw the resignation at
their will they may use the powers of the Constitution by treating the
resignation as a bargaining counter. For instance, it was suggested that where
a President is not happy with a particular Bill passed by Parliament, he may
submit his resignation and thus pressurise Parliament to withdraw the Bill and
after that is done, he could withdraw the resignation also. Such an action will
lead to a constitutional crisis of a very extraordinary nature. The argument is
based on pure speculation yet it. merits some consideration. Thus on a parity
of reasoning the same principles have to be applied to other constitutional
functionaries including a High Court Judge and that will create a very
anomalous situation. I think, it must have been this important consideration
that must have heavily weighted with the founding fathers of the constitution
in not providing for an express power to withdraw the resignation or a
provision for the acceptance of the resignation by any particular authority.
From this point of view also the irresistible inference that arises is that the
absncpe of power in Article 217(1) (a) or the other Articles in the case of
other constitutional functionaries indicated above is deliberate, and,
therefore, a Judge has no power to revoke his resignation, after having
submitted or communicated the same to, the President.
Another important aspect which may reveal the
intention of Parliament is to) be found in Article 101 (3) sub-clause (b) of
the Constitution which runs thus :
"101 (3) If a member of either House of
Parliament- (b) resigns his seat by writing under his hand addressed to the
Chairman or the Speaker, as the case may be, his seat shall thereupon become
vacant." It would be, seen that like other constitutional functionaries
mentioned above even a member of either House of Parliament could resign his
seat by writing under his hand addressed to the Chairman or the Speaker, as the
case may be and once that is done the seat would become vacant. A similar
provision exists so far as the members of the Legislature of a State are
concerned which is contained in Article 190(3) (b) which runs thus :
"190(3) If a member of a House of
Legislature of a State- (b) resigns his office by writing under his band
addressed So the Speaker or the Chairman, as the case may be, his seat shall
thereupon become vacant".
41 By virtue however of the Constitution 35th
Amendment Bill 1974 Parliament amended both Articles 10 1 (3) (b) and 190 (3)
(b) and made the resignation being effective dependent on the acceptance of the
same by the Speaker or the Chairman concerned. The amended provisions ran thus
"101(3) If a member of either House of
Parliament-- (b) resigns his seat by writing under his hand addressed to the
Chairman or the Speaker, as the case may be, and his resignation is accepted by
the Chairman or the Speaker, as the case may be, his seat shall thereupon
become vacant Provided that in the case of any resignation referred to in
sub-clause (b), it from information received or otherwise and after making such
inquiry as he thinks fit, the Chairman or the Speaker, as the case may be, is
satisfied that such resignation is not voluntary or genuine, he shall not
accept such resignation".
"190(3) If a member of a House of the
Legislature of a State- (b) resigns his seat by writing under his hand
addressed to the Speaker or the, Chairman, as the case may be, and his
resignation is accepted by the Speaker or the Chairman, as the case may be, his
seat shall thereupon become vacant Provided that in the case of any resignation
referred to in sub-clause (b) if from information received or otherwise and
after making such inquiry as he thinks fit, the Speaker or the Chairman, as the
case may be, is satisfied that such resignation is not voluntary or genuine, he
shall not accept such resignation".
The Statement of Objects and Reasons of this
Bill mentions why this amendment was brought about and the relevant portion may
be extracted thus "In the recent past, there have been instances where
coercive measures have been resorted to for compelling members of a Legislative
Assembly to resign their membership. If this is not checked, it might become
difficult for Legislatures to function in accordance with the provisions of the
Constitution. It is therefore proposed to amend the above two articles to
impose a requirement as to acceptance of the resignation by the Speaker or the
Chairman and to provide that the resignation shall not be accepted by the
Speaker or the Chairman, if he is satisfied after making such inquiry as he
thinks fit that the resignation is not voluntary or genuine".
This aspect of the matter has been adverted
to by Shukla, J. who observed as follows :- "This provision made the
resignation of a member of the Legislature self-executing. No acceptance was
4-211 SCr/78 42 Later, however, political
events created a situation in which it became imperative not to, let a
resignation become effective until it was accepted by the Chairman or the
Speaker and he was satisfied on inquiry that it was voluntary or genuine. In
some States there was political turmoil leading to 'en masse' resignations of
the members of Legislature.
Some of these resignations were also faked
and engineered by interested factions in order to- serve their Political ends.
So it was felt necessary to provide in the Constitution that the seat of a
member of Parliament shall become, vacant only after his resignation had been
accepted. That is why articles 101 (3) (b) & 1 90 (3) (b) were suitably
amended by the Constitution (Thirty-fifth Amendment) Act, 1974 the notification
is indicative of two things firstly, in the absence of any such provision
acceptance was not to be read into Article '101 when it talked of the
resignation of a member of Parliament. Secondly, as soon as the Parliament
intended that a resignation should not take effect until it received assent or
acceptance, it introduced a specific provision to that effect".
It would be noticed, therefore, that at the
time when Articles 101 (3) and 190(3) were being amended by the Constitution
(Thirty-fifth) Amendment Act the Constitution makers had also other similar
provisions like Articles 217, 94, 67 and 124(2)(a) etc. before them and if they
really intended that acceptance was made a condition precedent to the
effectiveness of a resignation in case of constitutional functionaries under
Article 217 and other Articles then such an amendment could have also been
incorporated in the Thirty-fifth Amendment Bill as well either by conferring a
power of revocation on the constitutional functionaries or by introducing a
provision for acceptance of the resignation. The very fact that no such
amendment was suggested or brought about in Article 217 and other Articles
clearly reveals that the Constitution makers intended no change so far as the
other Articles were concerned. This is a very important circumstance which
fortifies my conclusion that the power of revocation or withdrawal of
resignation once communicated to the President has been deliberately omitted by
the founding fathers from Article 217 and other similar Article.
Coming now to the second point regarding the
application of implied powers to the facts of a case, the matter was considered
in the case of Union of India v. S. H. Sheth & Anr. (supra). where this
Court was construing the provisions of Article 222 of the Constitution of India
and the case turned upon the question as to whether or not when a Judge was
transferred from one High Court to another it was necessary for the President
to take his consent. This Court by majority of 3 : 2 held that consent could
not be implied in Article 222 in the absence of an express provision.
Krishna Iyer, J. while expounding this aspect
of the matter and speaking for himself and Fazal Ali, J. observed as follows :
"It would be seen that there is
absolutely no provision in this Article requiring the consent of the Judges of
the High 43 Court before transferring them from one High Court to another.
Indeed, if the intention was that such transfers could be made only with the
consent of the Judges then we should have expected a proviso to Article 222(1)
in, some such terms as.
Provided that no Judge shall be transferred
from one High Court to another without his consent.
The absence of such a provision shows that
the founding fathers of the Constitution did not intend to restrict he transfer
of Judges only with their consent. It is difficult to impose limitations on the
constitutional provisions as contained in Article 222 by importing the concept
of consent which is conspicuously absent there from".
"If consent is imported in Article, 222
so as to make it a condition precedent to transfer a Judge, from one High
'Court to another then a Judge, by withholding consent, could Tender the power
contained in Article 222 wholly ineffective and nugatory. It would thus be
impossible to transfer a Judge if he does not give his consent even though he
may have great personal interests or close associations in his own State or by
his conduct he brings about a stalemate in the judicial administration where
the Chief Justice would become more or less powerless. In our opinion, the
founding fathers of the constitution could not have contemplated such a
situation at all. That is why Article 222 was meant to take care of such
contingencies." Similarly, Chandrachud, J. took the same view and observed
"The hardship, embarrassment or inconvenience resulting to a Judge by
reason of his being compelled to become a litigant in his own court, cannot
justify the addition of words to an article of the Constitution making his
consent a precondition of his transfer. In adding such words, we will be
confusing our own policy views with the command of the constitution".
In view of the decision of this Court which
is binding on us, can it be said that if the power of revocation of resignation
is not expressly contained in the Constitution the same may be supplied by the
application of the doctrine of implied powers. The question as to how far the
doctrine of implied powers can be, invoked has also been considered by this
Court in several cases. To quote one, viz., in the case of Bidi, Bidi Leaves
and Tobacco Merchants' Association, Gondia & Ors. v. The State. of Bombay
& Ors. (1) where Gajendragadkar, J. speaking for the Constitution Bench of
this Court observed as follows :- "The definition of the term 'wages'
postulates the binding character of the other terms of the contract and brings
within the purview of the Act only one term and that relates (1) A.I.R. 1962
44 to wages and no other. That being so, it
is difficult to hold that by implication the very basic concept of the term
'wages' can be ignored and the other terms of the contract can be dealt with by
the notification issued under the relevant provisions of the Act.
When the said other terms of the contract are
outside the scope of the Act altogether how could they be affected by the
notification under the Act under the doctrine of implied powers".
"Therefore the Act has made a specific
provision for the enforcement and implementation of the minimum rates of wages
prescribed by notifications. That is another reason why the doctrine of implied
powers cannot be invoked in support of the validity of the impugned clauses in
Thus, an analysis of this decision would
clearly reveal that where express provisions are made by a statute the doctrine
of implied powers cannot be invoked to supply the provisions which had been
deliberately omitted. Same view has been taken by the, Patna High Court in
Sukhdeo Narayan & Ors. v. Municipal Commissioners of Arrah Municipality
& Ors. (1) where the Court observed as follows :
"I hold, accordingly that the withdrawal
of the resignation of the Chairman (Opposite Party No. 2) as expressed in his
letters, has no effect in law and the Municipal Commissioners, in their meeting
on 19-1-1956 had jurisdiction to proceed on the question whether they should
accept it or not." I fully endorse these observations. For these reasons,
I am clearly of the opinion that in the absence of any express provision in
Article 217 empowering a Judge to revoke his resignation, it is difficult to
accept the view that the power of resigning which has been conferred on the
Judge under Article 217(a) carries with it the 'inherent power to withdraw his
resignation. In this view of the matter I am afraid, I am not in a position to
accept the submission of the Attorney General on this point.
I might mention that the High Court had gone,
into the question as to whether the act of submitting resignation by the Judge
to the President was a juristic act, and, therefore, once the position was
altered, it could not be recalled. For the purposes of the present case and
having regard to the reasons that I have already given, I would refrain from
going into this question as it is hardly necessary to, do so. Furthermore, it
seems to me that. the act of resignation by a Judge is a matter personal to him
and however careful or cautious he may be in exercising this power, the concept
of juristic act cannot be assigned to a document which is nothing but a letter
of resignation, pure and simple. However, I do not want to dilate on this
point, because in view of my finding that there is no express provision in
Article 217 empowering a Judge to withdraw his resignation after the same is
communicated to and submitted to the President, it is not necessary for me to
spell out the concept of a juristic act.
(1) A.I.R. 1956 Patna 367, 373.
45 Another important angle of vision from
which the point in issue can be approached is this. Once it is conceded that
the resignation becomes complete without the necessity of the President
accepting the same, the very concept of withdrawal of the resignation
disappears. In other words, the question of withdrawal of a resignation arises
only if the resignation has to be accepted by an employer, because so long, as
a resignation is not accepted it remains an incomplete document and totally
ineffective. In such circumstances, it is always open to the resignor to
withdraw his resignation which has not reached the stage of completion. Such
are the cases of resignation given by persons who are governed by usual master
and servant relationship. It appears that. in America even though a provision
for resignation is there, there is an additional provision that the resignation
has to be accepted by a particular authority and it is only in the context of
this peculiar relationship that the American authorities have taken the view
that a resignation can always be withdrawn until it is accepted. 'this state of
affairs is completely foreign to the provisions of our Constitution are
concerned which do not at all require the President to accept the resignation
of a Judge. If once the concept of acceptance of resignation is totally absent,
in my opinion, the question of withdrawal of the, resignation does not arise at
all, because the resignation having been submitted and communicated to the
President becomes complete and irrevocable once it is communicated. to and
received by the President. In fact, Article 217 does not envisage or enjoin a
conditional or prospective resignation. But assuming that the power to resign
carries with it the power to resign from a particular date, the conclusion
appears to me to be inescapable that once the resignation is communicated to
the authority concerned viz., the President in the instant case, the
resignation will become irrevocable and will take effect automatically ex
proprio vigore from the date mentioned in the letter. The mere fact that the
resignor mentions a particular date from which he wants to resign does not at
all empower him to withdraw or revoke his resignation at any time before the
date is reached. Such a conclusion would have been possible only if. the
completeness of a resignation depended on the acceptance of the resignation by
the authority concerned, because in such a case until the resignation was accepted
it was no resignation in the eye of law and could always have been recalled.
But where the concept of acceptance of resignation is.totally absent, it seems
to me to be a contradiction in terms to say that even though the resignation
has been submitted to the proper authority and received by him still it can be
recalled before the date is reached. I am not in a position to hold that a
resignation revealing an intention to resign from a particular date is a
conditional resignation. It is only a prospective resignation, but in view of
the peculiar provisions of Article 217(1) (a) it becomes irrevocable the moment
it is received by the President or is communicated to him though it may take
effect from the date mentioned in the letter or if no such date is mentioned
from the date of the letter itself.
I now turn to the Full Bench decision of the
Allahabad High Court in the case of Bahori Lal Paliwal v. District Magistrate,
Rulandshahr & Anr.(1) which is being relied on by the appellant.
Chaturvedi, J, (1) A.I.R. 1956 All. 511.
46 while drawing a distinction between the
Indian law under the U.P. Town Areas Act which was the subject matter of review
by the Court and the English Law on the subject observed as follows "The
Indian Law under the U.P. Town Areas Act, however has not followed the English
statutory law in this respect because the provisions of S.8-A of the Indian Act
provide for acceptance of the resignation by the District Magistrate, which
clearly shows that the resignation is not effective till it is accepted".
Furthermore, it would appear that under the
provisions of the statute in that case the resignation had to be accepted by
the appropriate authority and it was on this basis that the Court held that the
person had a right to withdraw his resignation before it was accepted or before
his office had come to an end. The Court further observed as follows "A
resignation which depends for its effectiveness upon the acceptance by the
proper authority is like an offer which may be withdrawn before, it is accepted".
These observations do not help, the case of
the appellant but fortify the conclusion that I have reached. It is manifest
that where effectiveness of a resignation depends upon acceptance of the same
by the proper authority it can always be withdrawn until accepted because the
resignation is not complete in the eye of law. This is what has been held by
the Full Bench of the Allahabad High Court in the aforesaid case.
Another decision to which our attention was
drawn by counsel for the appellant is the case of Bhairon Singh Vishwakarma v.
The Civil Surgeon, Narsimhapur & Ors.(1) This case also contains the same
principle which has been enunciated in the Allahabad case referred to above,
viz., that where a resignation is dependent for its effectiveness on the
acceptance by the proper authority, it can be withdrawn at any time before the
acceptance is given. This case was also dealing with a public servant to which
Article 311 applied and the resignation bad to be accepted by the Director of
Public Health. I do not see how this case helps, the appellant in any way.
Thus the position that emerges from the
aforesaid decisions is that where a resignation given by a Government servant
is dependent for its effectiveness on the acceptance by the appropriate
authority, the government servant concerned has an unqualified right to
withdraw the resignation until the same is accepted by the authority. In other
words, the position is that where the resignor has a right to resign but the
resignation can be effective for only after acceptance, it is a bilateral act.
That is to say, resignation by one, authority and acceptance of the resignation
by the other authority. Unless the two acts are completed, the transaction
remains in an inchoate form.
That is to say a resignation sent by a
servant is no resignation in the eye of law until accepted by the employer and
so long as it is not an effective resignation, there can (1)  Lab. I.C.
47 be no bar to withdrawing the same. The,
same however cannot be said of a resignation tendered by a High Court Judge
under Article 217(1) or other constitutional functionaries referred to
hereinbefore because in cases of such functionaries the act of resignation is a
purely an unilateral act and once the resignation is written and communicated
to the President it acts ipso facto and becomes fully effective without there
being any question of acceptance by the President. I have already held that
where a particular date is given in the letter of resignation, the resignation will
be effective from that particular date, but it does not mean that the resignor
had any right to recall his resignation merely because he has chosen a
particular date from which the resignation is to take effect. On the other
hand, the resignation becomes complete and irrevocable and cannot be recalled
either before or after the date mentioned is reached Having signed the
resignation and put the same in the course of transmission to the President the
Judges loses all control over the same and becomes functous officio and the
resignation becomes effective as soon as the date arrives without leaving any
room or scope to the resignor to change his decision. This appears to be the
constitutional scheme prescribed for the resignation of High Court Judges, Supreme
Court Judges and other constitutional functionaries. In fact, all the cases
cited by the appellant excepting some are cases where the effectiveness of the
resignation depends on the acceptance of the resignation.
I am fortified in my view by the observations
made in the American Jurisprudence Vol. 53 page 111 section 34 where the
following observations are to be found :
"The contract of employment is
terminated where the employee tenders his resignation and the proffer (sic) is
accepted by the employer".
These observations clearly illustrate that a
contract of employment can only be terminated by a bilateral act, that is to
say, resignation by the employee and acceptance by the employer.
In short, it seems to me that a resignation
contemplated by Article 217 (1) (a) is a unilateral act which may be compared
to an action of withdrawing a suit by the plaintiff under Order 23 Rule 3,
C.P.C. Once a plaintiff files an application withdrawing a suit, the suit
stands withdrawn and becomes effective as soon as it is withdrawn. In the case
of Smt. Raisa Sultana Begam and Ors. v. Abdul Qadir and others(,) a Division
Bench of the Allahabad High Court observed as follows "Since withdrawing a
suit is a unilateral act to be done by the plaintiff requires no permission or
order of the Court and is not subject to any condition, it becomes effective as
soon as it is done just as. a compromise does......... The act is like a point
and not continuous like a line having a beginning and an end. Either it is done
or not done; there is nothing like its being done incompletely or
ineffectively. The consequence of an act of withdrawal is that the plaintiff
ceases to be a plaintiff before the Court".
(1) A.I.R. 1966 All. 318, 321.
48 The same principle applies to resignation
submitted by a High Court Judge under Article 217(1)(a). The resignation, which
is a unilateral act, becomes effective as soon as it is communicated to the
The appellant however, placed great reliance
on a decision of the Kerala High Court in the case of M. Kunjukrishna Nadar v.
Hon'ble Speaker Kerala Legislative Assembly, Trivandrum and Ors.(1). This was a
case under Article190(3) of the Constitution by a member of the Assembly who
addressed a communication to the Speaker tendering his resignation. A Single
Judge of the Kerala High Court held that the letter of resignation could not be
effective until the date prescribed therein had reached and the notification
published in the Gazette regarding the vacancy of the seat of the member was
not warranted by law. In the first Place, the Court was really concerned with
the point of time as to when the actual vacancy of the member would arise and
the seat would become vacant so as to justify a notification for fresh
election. The point which is in issue before us did not arise in this shape in
the Kerala case at all. In this connection, the learned Judge observed as
follows :- "I hold therefore that it is open to a member of the
Legislature to tender his resignation on a prior date to take effect on a subsequent
date specified therein. The letter of re- signation has then to be construed as
having been deposited with the Speaker on the earlier date, to be given effect
to only on the date specified by the Member therein".
"The withdrawal nullifies the entrustment
or deposit of the letter of resignation in the hands of the Speaker, which must
thereafter be found to have become non-est in the eye of law. The absence of a
specific provision for withdrawal of prospective resignation in the
Constitution or the Rules is immaterial as basic principles of law and
procedure must be applied wherever they are relevant." While I find myself
in complete agreement with respect to the first portion of the observation of
the learned Judge, viz., that it was open to the Member to submit his
resignation to be effective from a subsequent date, I express my respectful
dissent from the view taken by the learned Judge that a Withdrawal would
nullify the resignation completely and even if there was no provision for
withdrawal of the resignation the same will become non-est after it is
withdrawn. The Judge has not at all discussed the law on the subject nor has he
referred to the constitutional provisions relating to resignation In fact, the
35th Amendment Act itself shows that the concept of acceptance of resignation
was completely absent before the amendment was brought about and the legal
position before the amendment was that the resignation would operate ipso facto
and ex proprio vigore and could not be withdrawn.
That is why a specific power of acceptance
(1) A.I.R.1964 Ker.194.
49 was introduced by virtue of the amendment.
As however Parliament did not intend to disturb the position in case of other
constitutional functionaries like the High Court Judges, Supreme Court Judges,
President, Vice-President, Speaker etc. no such amendment by introducing- the
concept of acceptance of the resignation was brought about in Article 217 and
other similar Articles. Indeed, if Parliament really intended that the
resignation given by a High Court Judge or other constitutional functionaries
indicated above could withdraw the resignation after communicating the same to
the appropriate authority or even before the date from which the resignation
was to operate, a suitable amendment could have been made in these Articles so
as to confer an express power on the constitutional functionaries to do so. The
fact that no such provision was made confirms my view that Parlia Tent clearly
intended that the resignation of constitutional functionaries being a
sacrosanct act should remain as it was intended by the founding fathers of the
Constitution, viz., once a resignation is submitted or communicated to the
President, it becomes final and irrevocable and cannot be recalled by the
functionary concerned. Thus,. Parliament maintained the unilateral nature of
the act of resignation. In these circumstances, therefore, I am not able to
place any reliance on the judgment of the Kerala High Court cited by counsel
for the appellant.' The Full Bench decision of the Delhi High Court in the case
of Y. K. Mathur & And. v. The Commissioner, Municipal Corporation of Delhi
& Ors.(1) appears to have been the sheet-anchor of the arguments of the
Attorney General for the proposition that a prospective resignation submitted
to the appropriate authority could be withdrawn by the resignor at any time
before the date mentioned in the letter of resignation is reached. I have
carefully perused the aforesaid decision and I am unable to agree with the view
taken by the Delhi High Court for the reasons that I shall give hereafter.
To begin with, the Court was considering the
provisions of section 33(1)(b) of the Delhi Municipal Corporation Act which may
be extracted thus "33(1) If a councilor or an alderman (a)................
(b)resigns his seat by writing under his hand
addressed to the mayor and delivered to the commissioner his seat shall
thereupon become vacant".
It was vehmently contended by the appellant
that section 33 (1) (b) (supra) was in absolute pari-materia with Article
217(1) (a), and therefore, the interpretation placed by the Delhi High Court on
this section would clearly apply to the facts of the present case which depends
on the interpretation of Article 217(1)(a). In the first place, I am unable to
agree with tile Attorney General that the pro -visions of the Municipal Act can
be equated with the provisions contained in the Constitution of India. There is
a world of difference between a constitutional functionary which has been
assigned. a special status and given a high place under the constitutional
provisions and a municipal councilor elected under the, local Municipal Act. It
is obvious that in both these cases the self same considerations and identical
principles cannot be applied because of the nature of the position held by
these two authorities. The High Court held that as the statute did not limit
the authority of the councilor to resign from a prospective date, the authority
concerned had the undoubted power to withdraw it before the date is reached. In
this connection, the Court observed as follows "The statute does not in
any way limit the authority of the councilor who has sent his resignation from
a prospective date to withdraw it before that date is reached. The resignation
which is to be effective from a future date necessarily implied that if that
date has not reached it would be open to the councilor concerned to withdraw
These observations suffer from an apparent
fallacy. In the first place, the Court seems. to assume that there is an
implied power to withdraw the resignation where the resignor gives a particular
date from which the resignation is effective, In the absence of any express
provision conferring such a power, it was not open to the High Court to invoke
the doctrine of implied powers as pointed out by me earlier. An implied power
cannot be conferred on an authority by a process of legal assumptions, in the
absence of any express provision.
Another argument which weighed heavily with
the High Court was that there was no law which compelled a councillor to give
his resignation if he did not want it, and, therefore, if a councillor chose-'
to resign, he could not be debarred from withdrawing it at any time before the
date from which the resignation was to be effectively reached. This argument
fails to take into consideration the hard realities of the situation
contemplated both by section 33(1)(b) and Article- 217 (1) (a) 'of the
Constitution. There is no question of there being any compulsion on the resignor
to submit his resignation. In fact,. both section 33(1)(b) and Article
217(1)(a) merely conferred a privilege on the resignor to offer his resignation
if he so desired. It depends upon the sweet will of the councillor to resign or
not to resign.
From this however it cannot be inferred that
where once a resignation is submitted and results in certain important
consequences, namely, that the resignation acts ex proprio vigore, yet the
resignor can still' withdraw his resignation and thus nullify the effectiveness
of the resignation as contemplated both by section 33(1)(b) and Article
Such an interpretation appears to be a
contradiction in terms and against a plain interpretation of section 33(1)(b)
of the Municipal Act and Article 217(1)(a) of the Constitution. Furthermore,
the provision of section 33(1)(b) does not appear to be in complete
pari-materia with those of Article 217(1) (a) inasmuch as section 33(1)(b)
provides that as 'soon as the resignation was delivered to the Commissioner the
seat of the councillor shall become 51 vacant. On the interpretation of this
provision the Delhi High Court held that the vacancy could occur only when the
resignation became effective and if the resignation was from a future date both
the resig-nation. and the vacation of the seat could be simultaneous. In this
connection, the Court observed as follows "Under section 33(1)(b) both the
resignation and the vacancy of the seat are effective from the same time......
Vacancy will only occur when resignation is effective, and if it is from future
date both resignation and vacation of seat will be effective
So far as Article 217(1)(a) is concerned it
is differently worded and the consequence of the resignation is not at all
indicated in this Article. Thus, the provisions of Article 217(1)(a) cannot be
said to be in complete peri materia with section 33(1) (b) of the Municipal
Thirdly, as I have already pointed out the
consideration by which the Court is Governed and the principles which it may
seek to apply to a municipal councillor cannot by any process of reasoning or
principle of logic be applied to a High Court Judge or other Constitutional
functionaries governed by constitutional provisions. Fourthly, the Delhi High
Court has applied the doctrine of implied powers which as discussed above
cannot apply where there is no express provision justifying a particular
situation. For these reasons, with due deference to the Judges constituting the
Full Bench of the Delhi High Court I find myself unable to agree with the view
taken by them. In my opinion, the Delhi case referred to above is either
distinguishable or even if it be taken to be directly in point, it is wrongly
On the other hand, there are some English
cases which throw a flood of light on the view that propose to take in this
case and which have been relied upon by the majority judgment of the Allahabad
High Court. In the case of Reichel v. Bishop of Oxford(1) it was held that a
clerk who had tendered his resignation to the Bishop cannot withdraw it, even
before acceptance, if, in consequence of the tender, the position of any party
has been altered. In that case the Bishop had been thereby induced to abstain
from commencing proceedings in the Ecclesiastical Court for the deprivation of
the clerk, in view of his resignation. Lord North after considering all the
aspects of the case observed as follows :
"Applying that to the present case, the
Plaintiff, by sending in his resignation, procured a postponement of legal
proceedings against himself, and thereby, according to ecclesiastical, law,
incapacitated himself from withdrawing it during, the interval before the 1st
of October; and this result would follow, even if the true view of the facts.
be, that the Bishop did not accept the resignation until that date.
(1) 1887) Ch. D. 48.
52 Under these circumstances, it appears to
me that the plaintiff's attempt to withdraw his resignation fails entirely, and
that, having failed on all points, the action must be dismissed with
This decision was affirmed by the Court of
Appeal and it was held that the resignation was validly executed and
irrevocable. In the Appeal Case Lord Halsbury observed as follows :
"But there was no condition here at all.
As I have already said, I find as a fact that Mr. Reichel agreed absolutely to,
resign rather than undergo the inquiry which the Bishop would have felt himself
otherwise compelled to institute. Neither in form nor in substance was the
Lord Herschell observed as follows " in
these circumstances it is idle to consider what the Appellant's position might
have been, if there had been Do such arrangement, and he merely had sent in his
resignation without knowing whether it was to be accepted or not. He cannot in
my opinion be permitted to upset the agreement into which he voluntarily
entered, and which he has done all that he could to complete, upon the
allegation that there was no formal acceptance of the resignation until the 1st
of October, 1886".
Lord Herschell observed as follows " It
was argued further by the appellant that inasmuch as his resignation was
tendered to the Bishop on the understanding that it was not to be accepted
until a subsequent date.
the resignation was a conditional one, and therefore
void. I can see no ground for such a contention. The resignation was absolute.
It was intended to take effect in any
These observations also show that merely
because the resignation is to take effect from a particular date, it does not
become a conditional resignation and its absolute nature is not changed at all,
because the Law Lords as also the Chancery Division proceeded on the footing
that even though the resignation of the clerk was to take effect from a certain
date it was not conditional but absolute. The learned counsel for he appellant
sought to, distinguish this case on the ground that in the Bishop's case
(supra) a material change had already taken place, which could not be reversed
and that is why it was held that the resignation could not be withdrawn. It is
true that this was one of the grounds taken both by the Chancery Division Court
and the Appeal Court, but the same reason will apply to the present case also
because once a resignation was submitted by Satish Chandra to take effect from
the 1st August, 1977, the Presi- dent was clearly entitled to fill up the
vacancy of the Judge from 1st August, 1977 and may take steps accordingly.
Thus, by virtue of 53 his resignation Satish
Chandra had invited the President to take steps to fill up the vacancy which
will arise on 1st August, 1977. By virtue of this representation, therefore, a
material change undoubtedly took place. For these reasons, therefore, I am not
in a position t0 accept the arguments of counsel for the appellant on this
In the case of Finch v. Oake (1) a member
under Trade Protection Society was entitled to retire at any time without the
consent of other members. On the receipt by the society of a letter from a
member stating his wish to retire, he at once ceased to, be a member without
the necessity of the acceptance by the society of his resignation. It was held
that the member could not withdraw his resignation even before acceptance and
he could only become a member again after reelection. It would be seen that the
principles decided in this case apply directly to the facts of the present case
where also under the provisions of Article 217 the effectiveness of resignation
does not depend upon the acceptance of the same by the appropriate authority.
In the aforesaid case Lindley, L.J. observed as follows "By paying his
subscription he no doubt acquires certain rights and benefits. But what is
there to prevent him from retiring from the association at any moment 'if he
wishes to do so ? Absolutely nothing. In my opinion no acceptance of his
resignation is required, though of course he cannot get back the 10s.6d. which
he has paid........ I can see no principle of law which entitles him to
withdraw his resignation".
Kay, L. J. observed as follows "It is
said that, before his resignation had been accepted by the association, be
withdrew it. But why was any consent to his withdrawal from the society
required ? As a voluntary member of a voluntary society he had said, "I do
not wish to continue a member any longer........ In my opinion, after his
letter of resignation had been received, the plaintiff could not become a
member of the society again without being reelected".
In my opinion, the principles laid down by
this case seem to be in all fours with the facts of the present case.
In the case of People of the State of
Illinois Ex. Rel.
Benjamin S. Adamowski, v. Otto Kerner(2) what
happened was that a County Judge- submitted his resignation to the Governor
which was to become operative on a specified date.
But the Judge sought to. withdraw the
resignation before the date mentioned in the resignation and before the
Governor had acted thereon. It was held by the Illinois Supreme Court that the
resignation could not be withdrawn. In this connection. Davis, J. while
delivering the opinion of the court observed as follows (1)  1 Ch. D.
(2) 82 A.L.R. 2tid Series 740.
54 "However, public policy requires that
there be certainly as to who are and who are not public officers......
Therefore, the resignation of an officer effective either forthwith or at a
future date may not be withdrawn after such resignation is received by or filed
with the officer authorized by law to fill such vacancy or to call an election
for such purpose".
It is true that Schaefer, J. and Hershey, J.
dissented from the view taken by Davis, J.,
but I would prefer to follow the view taken by Davis, J. which falls in line
with the tenor and the spirit of the constitutional provisions which we are
called upon to interpret here.
Similarly, in the case of Glossop v.
Glossop(1) it was held that the managing
director could not withdraw the resignation without the consent of the company,
and by his letter of resignation be vacated his office.
Neville, J. while adumbrating the aforesaid
principles observed as follows :- "I have no doubt that a director is
en-titled to relinquish his office at any time he pleases by proper notice to
the company, and that his resignation depends upon his notice and is not
dependent upon any acceptance by the company, because I do not think they are
in a position to refuse acceptance.
Consequently, it appears to me that a
director, once having given in the proper quarter notice of his resignation of
his office, is not entitled to withdraw that notice, but, if it is withdrawn,
it must be by the consent of the company properly exercised by their managers,
who are- the directors of the company".
It would appear, from a conspectus of the
authorities cited above and on a close and careful analysis of the provisions of
Article 217(1) of the Constitution of India having regard to the setting of the
spirit in which this provision was engrafted that the more acceptable view
seems to be that where the effectiveness of a resignation by a Judge does not
depend upon the acceptance by the President and the resignation acts ex proprio
vigore on the compliance of the conditions mentioned in Articie 217 (1) (a)
(that is by writing under his hand addressed to the, President and being
communicated the same to the President) the Judge has no power to revoke or
recall the aforesaid resignation even though he may have fixed a particular
date from which the resignation is to be effective. In other words the act of
resignation is a purely unilateral act and the concept of withdrawal or recalling
or revoking the resignation appears to be totally foreign to the provisions of
Counsel for the appellant relied on Corpus
Juris Secundum, American Jurisprudence and other books. of eminent authors,
which do not appear to me to be very helpful in deciding the point in issue in
the present case. In the first place the provision of the American Constitution
as regards resignation of Judges is quite different. In (1) (1907) 2 Ch. D.
55 fact, there is no provision at all in the
American Constitution entitling a Judge to resign. Article 3 section 1 of the
American Constitution as edited by Corwin shows that although Article 3 Section
1 of the American Constitution confers judicial powers on the United States in
one Supreme Court and other inferior Courts as may be established by the
Congress it provides that Judges both of the Supreme Court and inferior Courts
shall hold their office during good behaviour. Apart from this provision there
is no provision in the Constitution regarding the mode and manner in which the
Judges could resign their office.
In the absence of any such provision, the
general principles have been applied which includes cases where a Judge tenders
his resignation either prospectively or with a condition attached to the same
and such a resignation has to be accepted by the President and can be withdrawn
at any time before the date fixed is reached. These principles, however, cannot
be applied to our Constitution where a definite mode and a prescribed procedure
has been formulated for the resignation of a Judge and the consequences flowing
thereof. In these circumstances, therefore, we, can derive little help from the
provisions of the American Constitution on the question at issue. In the
absence of any express provision, the courts have applied the common law which
is to the effect that in the absence of a statute providing for resignation,
the resignation becomes effective on its acceptance by the proper authority.
Similarly, it is laid down that a prospective resignation may be withdrawn at
any time before its acceptance vide Corpus Juris Secundum Vol.
48 p. 973 para 25 which runs thus :-
"The term or tenure of a judge, with respect to the incumbent, may become
terminated by reason of his resignation. In the absence of a statute providing
otherwise, a resignation becomes effective on its acceptance by the proper
authority, but, in order to become effective it must be accepted. A prospective
resignation may be withdrawn at any time before it is accepted, and after it is
accepted it may be withdrawn by the consent of _the accepting authority, at
least where no new rights have intervened".
Similarly, in Corpus Juris Secundum Vol. 67
p. 227 para 55 the following observations are to be found :
"However, under a statute providing that
a resignation shall take effect on due delivery to the officer to whom it is
addressed without making provision for a prospective. resignation, a
resignation to take effect at a future, date is not permissible, and such
resignation becomes effective on due delivery and creates a vacancy as of the
date of delivery".
These observations do not seem to be directly
in point but come as close as possible to the view taken by me.
The learned counsel for respondent No. 1 Mr.
Jagdish Swarup took us through extracts of a number of books including Paton's
Jurisprudence and Salmond's Jurisprudence with a view to explain 56 the
incidents and qualities of a legal right. The extracts, however, do not appear
to me to be relevant to the facts of the present case where we are dealing with
a codified right which has to be performed within the four corners of the
constitutional provisions. The general principles contained in the book of the
eminent jurists referred to by Mr. Jagdish Swarup cannot be disputed. The main
question, however, is as to what is the effect of the provisions of Article
217(1) (a) of the Constitution of India which prescribes a particular mode for
the resignation of High Court Judges. I, therefore, do not think it necessary
to advert to the books referred to by the High Court or by counsel for the
Thus, from the conclusions arrived by me on
the questions involved in this appeal the following propositions in my opinion
1. That the concept of the acceptance of
resignation submitted by a High Court Judge is completely absent from Article
217(1)(a) and the effectiveness of the resignation does not at all depend upon
the acceptance of the resignation by the President nor does such a question
ever arise. This is how the Executive Government has implemented the law for
wherever notifications regarding the resignation of High Court Judges or
Supreme Court Judges have been made they have merely mentioned the date of the
resignation and not the fact of acceptance. The High Court has elaborately
dealt with this question.
2. That in view of the provisions of Article
217 ( 1 )(a) and similar provisions in respect to high constitutional
functionaries like the President, Vice-President, Speaker etc. the resignation
once submitted and communicated to the appropriate authority becomes complete
and irrevocable and acts ex proprio vigore.
3. That there is nothing to show that the
provisions of Article 217(1) (a) exclude a resignation which is prospective.
That is to say, a resignation may take effect from a particular date Even so,
the resignation may be effective from a particular date but the resignor
completely ceases to retain any control over it and becomes functus officio
once the resignation is submitted and communicated to the appropriate
4. That the resignation contemplated by
Article 217(1)(a) is purely an unilateral act and takes effect ipso facto once
intention to resign is communicated to the President in writing and addressed
5. That on a true interpretation of Article
217(1) (a) a resignation having once been submitted and communicated to the
President cannot be recalled even though it may be prospective in nature so as
to come into effect from a particular date. It is not possible to hold that such
a resignation I can be withdrawn at any time before the date from which the
resignation is to be effective is reached.
6. That as the Constitution contains an
express and clear provision for the mode in which a resignation can be made it
has deliberately omitted to provide for revocation or withdrawal of a
resignation once submitted and communicated to the President. In the absence of
such a provision, the doctrine of implied powers cannot be invoked to supply an
omission left by the founding fathers of the Constitution deliberately.
The principles enunciated above flows as a
logical corollary from the nature and character of the privilege, right or
power (whatever name we may choose to give to the same) conferred by the
Constitution on a Judge of the High Court or other constitutional functionaries
mentioned hereinbefore. Salmond on Jurisprudence (12th Ed. by Fitzgerald)
describes a species of legal rights thus :- "All these are legal
rights-they are legally recognised interests-they are advantages conferred by
law. They resemble liberties, and differ from rights stricto sensu, inasmuch as
they have no duties corresponding to them. A power may be defined as ability
conferred upon a person by the law to alter, by his own will directed to that
end, the rights, duties, liabilities or other legal relations, either of
himself or of other persons. Power is either ability to determine the legal
relations of other persons, or ability to determine one's own. The first of
these-power other persons-is sometimes called authority;
the second-power over oneself-is usually
Similarly, Paton on Jurisprudence (3rd
Edition by Derham) while illustrating the right of liberty observed as follows
"I have liberty to breathe, to walk in
my own fields, to play golf in my private links.
Here no precise relationship to others is in
question, save that the law will protect my liberty if others interfere with
But it is more accurate to say that I have a
liberty to, play than that I have a claim, for I may exercise my liberty
without affecting others, whereas my claim can be enforced only by coercing
another to act or forbear".
It would thus appear that the privilege or
power enshrined in Article 217(1)(a) is an absolute one and not relative.
In other words, the aforesaid power is an
independent one and has no corresponding rights to be performed by any other
authority. The only privilege given to a Judge of the High Court is to resign
without there being any corresponding right to the President to accept the
same, nor is there any power in the resignor to recall or revoke the
resignation once it becomes effective. The provisions of Article 217(1) (a)
really contemplates that the decision of a Judge to resign his office must be
taken with due deliberation after considering all the pros and cons of the
matter and not under any emotional instinct or inspired by undue haste or
momentous fury. One of the essential qualities of a judicial power is restraint
and a Judge before resigning 5-211 SCT/78 58 must be prepared to take a
decision once for all so that having taken the decision he is not in a position
to repent on the same or to brood over it. The decision once taken by the Judge
in this regard is irrevocable and immutable and is just like an arrow shot from
the bow which cannot be recalled or a bullet having fired and having reached
its destination cannot come back to the barrel from which it was shot.
Thus having regard to the letter of
resignation in the present case, there can be no doubt that Satish Chandra had
in his letter dated 7th May, 1977 indicated his unequivocal intention to resign
in the clearest possible terms to the President with effect from 1st August,
1977 and the letter having been communicated to the President and received by him,
it was not open to Satish Chandra to withdraw or revoke that letter.
Consequently, the letter dated 15th July, 1977 addressed to the President by
Satish Chandra revoking-his resignation was null and void and must be
The position, therefore, in my opinion, is
that Satish Chandra ceased to be a Judge of the High Court with effect from 1st August, 1977. For these reasons, therefore, I fully agree with the majority view of
the High Court (Misra, Shukla and Singh, JJ.). I am unable to persuade myself
to agree with my Brother Judges who have taken a contrary view.
I, therefore, uphold the judgment of the High
Court and dismiss the appeals. We have already pronounced the operative portion
of the order on 8th December, 1977 and we have now given the reasons for the
order pronounced. In the circumstances, there would be no order as to costs.